Salient Features Of Indian Constitution Essay Introduction

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Salient Features of the Constitution of India:

The Preamble, Fundamental Rights and Duties, Directive Principles; Parliamentary System and Amendment Procedures; Judicial Review and Basic Structure doctrine

The Constitution of India is considered as a distinctive constitution around the globe. It is the largest written liberal democratic constitution of the world. It offers for a mixture of federalism and Unitarianism, and flexibility and with rigidity.

The Constitution of India was outlined by a Constituent Assembly. This Assembly was an indirectly chosen body. It had laid down certain ideals to be included in the Constitution. These ideals included commitment to democracy, guarantee to all the people of India, Justice, equality and freedom. It had also proclaimed that India will be a Democratic Republic.

Reports suggested that the Constituent Assembly held its first sitting on the 9th December, 1946. It reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India. Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. Passed by the Constituent Assembly on 26 November 1949, it came into effect on 26 January 1950. The date 26 January was chosen to commemorate the declaration of independence of 1930. Since its inauguration on 26th January 1950, the Constitution India has been efficaciously guiding the path and development of India.

With the help of Article 368, Parliament can amend the constitution. Every part of constitution can be modified by the Parliament except “basic structure” of the constitution as held by the Supreme Court. Any law which violates the basic structure of the constitution is declared unconstitutional & invalid by the court.

Indian Constitution can be said as the hugely written constitution in the world because of its contents. In its innovative form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present, it contains 395 Articles and 12 Schedules, and more than 80 amendments. There are many factors responsible for the long size of the constitution. One major factors was that the framers of the constitution copied provisions form several sources and several other constitutions of the world. They have followed and reproduced the Government of India Act 1935 in providing matters of administrative detail. It was needed to make provisions for a typical problems of India like scheduled castes, Scheduled Tribes and backward regions. In Indian constitution, provisions were made for elaborate centre-state relations in all aspects of their administrative and other activities. The size of the constitution became large, as provisions regarding the state administration were also included. Additionally, a detail list of individual rights, directive principles of state policy and the details of administration procedure were laid down to make the Constitution clear and unambiguous for the ordinary citizen. Therefore, the Constitution of India became an exhaustive and lengthy one.

India has implemented the Parliamentary system as established in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long as it enjoys the confidence of the legislature. The president of India, who remains in office for five years is the nominal, titular or constitutional head. The Union Council of Ministers with the Prime Minister as its head is drawn from the legislature. It is jointly responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive. In the states also, the government is Parliamentary in nature.

The Constitution of India identifies only single citizenship. In the United States, there is provision of dual citizenship. In India, people are citizens of India only, not of the respective states to which they belong. This provision would help to promote harmony and integrity of the nation.

India is a secular state, because it does not discriminate between individuals on the basis of religion. Neither it encourages nor discourages any religion. In contrast, right to freedom of religion is ensured in the Constitution and people belonging to any religious group have the right to acknowledge, practice or propagate any religion they like.

The salient features of the Constitution of India are as under:

1. Preamble of the Constitution: The Constitution of India initiates with a Preamble. The Preamble consists of the ideals, objectives and basic principles of the Constitution. The salient features of the Constitution have developed directly and indirectly from these objectives which flow from the Preamble. The Preamble is described as an introduction or preface of a book. As an overview, it is not a part of the contents but it explains the purposes and objectives with which the document has been written. So is the case with the ‘Preamble’ to the Indian Constitution. As such the ‘Preamble’ provides the guide lines of the Constitution. Basically, it is a brief introductory statement that sets out the guiding purpose and principles of the document, and it indicates the source from which derives its authority, meaning, and the people.

The Preamble describes the objectives of the Constitution in two ways: one, is about the structure of the governance and secondly, it explains the ideals to be achieved in independent India. It is because of this, the Preamble is considered to be the major element of the Constitution.

The objectives, which are laid down in the Preamble, are:

  1. Description of Indian State as Sovereign, Socialist, Secular, Democratic Republic. (Socialist, Secular added by 42nd Amendment, 1976).
  2. Provision to all the citizens of India i.e.
    1. Justice social, economic and political.
    2. Liberty of thought, expression, belief, faith and worship.
    3. Equality of status and opportunity.
    4. Fraternity assuring dignity of the individual and unity and integrity of the nation.

The Preamble to the Constitution of India is a well drafted document which signifies the values of the constitution. It asserts India to be a Sovereign Socialist Secular Democratic Republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation. The Preamble is the nature of Indian state and the objectives it is committed to secure for the people.

2. Fundamental Rights and duties:

The Constitution of India grants and guarantees Fundamental Rights to its citizens. It is called the Indian Bill of Rights. Initially, seven Fundamental Rights were granted but after the deletion of the Right to Property from the list of Fundamental Rights (44th Amendment Act 1979) their number came down to six.

Prof. H.J. Laski stated that "A state is known by the rights it maintains". The constitution of India confirms the basic principle that every individual is permitted to enjoy certain basic rights and part III of the Constitution deals with those rights which are known as fundamental right.

The Six Fundamental Rights are under:

1. Right to Equality:

It provides for Equality before Law, End of Discrimination, Equality of Opportunity, Abolition of untouchability and Abolition of Titles.

2. Right to Freedom:

It incorporates six fundamental freedoms that include freedoms of speech and expression, freedom to form associations, freedom to assemble peaceably without arms, freedom to move freely in India, freedom of residence in any part, and freedom of adopting any profession or trade or occupation. It safeguards personal freedom and protection in respect of conviction for certain offences.

The Constitution lays down that the freedom of life and liberty cannot be limited or denied except in accordance with the procedure established by law. Now under Art 21A Right to Education for the children between the ages of 6-14 years has been granted. Art. 22 guarantees protection against arbitrary arrest and detention.

3. Right against Exploitation:

This Fundamental Right forbids sale and purchase of human beings, forced labour (begaar) and employment of children in hazardous jobs and factories.

4. Right to Freedom of Religion:

The objectives of this right include the freedom of conscience, religion and worship. Any person can follow any religion. It gives to all religions freedom to establish and maintain their religious institutions. Citizens cannot be compelled to pay any tax for the propagation of any religion. The state cannot levy a tax for any religion and constitution prohibits the imparting of religious instructions in schools and colleges.

5. Cultural and Educational Rights:

In this right, the Constitution guarantees the rights of the minorities to maintain and develop their languages and cultures. It also confers upon them the right to establish, maintain and administer their educational institutions.

6. Right to Constitutional Remedies (Art. 32):

This fundamental right is the key of the entire Bill of Rights. It provides for the enforcement and protection of Fundamental Rights by the courts. It empowers the Supreme Court and High Courts to issue writs for the enforcement of these rights.

It is stated that these fundamental rights are justiciable and the individual can move to the higher judiciary that is the Supreme Court or the High Courts, if there is an encroachment on any of these rights. The right to move to the Supreme Court straight for the enforcement of fundamental rights has been guaranteed under Article 32 (Right to Constitutional Remedies). However, fundamental rights in India are not absolute. Reasonable constraints can be imposed keeping in view the security-requirements of the state.

It is further added by political scientist that fundamental rights for Indians have also been intended to overturn the inequalities of pre-independence social practices. Precisely, they have also been used to abolish untouchability and thus prohibit discrimination on the basis of religion, race, caste, sex, or place of birth. They also prohibit trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. They are covered under articles 14 to 32 of the Indian constitution.

Fundamental Duties of constitution are as under:

A new part IV (A) after the Directive Principles of State Policy was combined in the constitution by the 42nd Amendment, 1976 for fundamental duties. These duties are mentioned below:

  1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
  2. To apprize and follow the noble ideals, which inspired our national struggle for freedom.
  3. To sustain and protect the sovereignty, unity and integrity of India.
  4. To defend the country and render national service when called upon to do so.
  5. To promote coordination and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, regional or sectional diversities, to renounce practices derogatory to the dignity of woman.
  6. To value and preserve the rich heritage of our composite culture.
  7. To protect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for living creatures.
  8. To develop scientific temper, humanism and the spirit of inquiry and reform.
  9. To defend public property and to abjure violence.
  10. To endeavour towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of Endeavour and achievement.

The main aim of integrating these duties in the Constitution is to remind the people that while enjoying their right as citizens, should also perform their duties as rights and duties are correlative.

Directive Principles:

Directive Principles of State Policy. A unique aspect of the Constitution is that it comprises of a chapter in the Directive Principles of State Policy. These principles are in the nature of directives to the government to implement them to maintain social and economic democracy in the country.

It exemplifies important philosophies such as adequate means to livelihood, equal pay for both men and women, distribution of wealth so as to serve the common good, free and compulsory primary education, right to work, public assistance in case of old age, unemployment, sickness and disablement, the organisation of village Panchayats, special care to the economically disadvantaged group in country. Most of these principles could help in making India welfare state. These principles have been stated a; "fundamental in the governance of the country".

Parliamentary System and Amendment Procedures:

Parliamentary System:

The Constituent Assembly decided to espouse Parliamentary form of government both for the Centre and the states. A parliamentary system is a system of democratic governance of a state where the executive branch derives its democratic legitimacy from the legislature and is also held responsible to that legislature. In a parliamentary system, the head of state is normally a different person from the head of government.

In Indian parliamentary system, distinction is made between nominal and real executive head. The Council of Ministers is responsible before the Lok Sabha, The lower house of union parliament. There are close relations between executive and legislature. The tenure of the Council of Ministers is not fixed as it stays in office till it enjoys the confidence (Shashishekhar Gopal Deogaonkar, 1997).

Figure: Structure of Indian parliament

There are limited powers of parliament in Indian constitution:

It can pass laws on those subjects which have been entrusted to it by the constitution.

The bills passed by the Parliament need the approval of the President.

The Supreme Court can exercise the powers of judicial review over the laws passed by the parliament and can declare unconstitutional the laws which it considers are against the constitution.

Amending the Constitution of India: Amending the Constitution of India is the procedure of making modifications to the nation's fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure guarantees the sanctity of the Constitution of India and keeps a check on uninformed power of the Parliament of India.

Though, there is limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various principles or rules in regard to checking the validity/legality of an amendment. The most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala.

The Constitution of India offers a distinctive amending process when comparing with the Constitutions of other nations. It can be defined as partly flexible and partly rigid. The Constitution provides for a variety in the amending process. This feature has been commended by Australian academic Sir Kenneth Wheare who realized that uniformity in the amending process imposed “quite unnecessary restrictions” upon the amendment of parts of a Constitution. An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be approved in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses. The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be approved by the Legislatures of not less than one-half of the States. Although, there is no set time limit for ratification, it must be completed before the amending Bill is presented to the President for his assent.

Every constitutional amendment is articulated as a statute. The first amendment is called the "Constitution (First Amendment) Act", the second, the "Constitution (Second Amendment) Act". Each amendment has the long title "An Act further to amend the Constitution of India".

Judicial Review:

The judiciary has significant position in Indian Constitution and it is also made independent of the legislature and the executive. The Supreme Court of India stands at the peak of single integrated judicial system. It operates as defender of fundamental rights of Indian citizens and guardian of the Constitution.

The entire judicial system of India is systematized into a hierarchical order. Supreme Court is at the highest position of judicial administration below that there are high courts at the state level and there are district courts at the district level. All the courts of India are bound to accept the decisions of the Supreme Court.

Figure: structure of the judiciary

The constitution of India makes provisions for the independence of judiciary because only independent judiciary can protect the rights and authorities of the people, can protect the supremacy of the constitution:

In judiciary:

  1. - An impartial method has been implemented for the appointment of the judges.
  2. - High qualifications have been fixed for the judges.
  3. - The judges of the Supreme Court stay in office till 65 years of age and of High courts till 62 years of age.
  4. - Difficult method has been espoused for the elimination of the judges as they can be removed only through impeachment by the union parliament.
  5. - There is prohibition of practice after the retirement of the judges.

If any law passed by the legislature or action taken by the executive contravenes the provisions of the Constitution, they can be declared as null and void by the Supreme Court. Therefore, it has the power of judicial review. Judicial Review denotes to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict to the Constitution of India.

In Indian constitution, the judiciary is provided with the power of judicial review through the constitution which means that all the laws passed by the parliament and State Legislatures, constitutional amendments, ordinances and executive orders issued by the executive are reviewed by the judiciary and in case judiciary finds that any one of these is against the constitution, the judiciary has the power to declare it unconstitutional.

After independence, the inclusion of explicit provisions for judicial review were compulsory in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who headed the drafting committee of Indian Constituent Assembly, had described the provision related to the same as the ‘heart of the Constitution’. Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has grown on the lines of common law principles such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.

Judicial Review is the power of the Judiciary by which:

The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.

The court determines the constitutional validity of the laws and rules of the government.

The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.

But judicial review in India constitutes a middle path between the American judicial supremacy in one hand and British Parliamentary supremacy in the other.

Basic Structure doctrine:

The basic structure doctrine is an Indian judicial norm that the Constitution of India has certain basic features that cannot be changed or destroyed through amendments by the parliament.

The "basic features" principle was first explained in 1964, by Justice J.R. Mudholkar in his disagreement, in the case of Sajjan Singh v. State of Rajasthan. He wrote, "It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?"

The basic features of the Constitution have not been openly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was witnessed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it.

Several aspects of the Constitution termed as "basic" are mentioned below:

  1. Supremacy of the Constitution
  2. Rule of law
  3. The principle of Separation of Powers
  4. The objectives specified in the Preamble to the Constitution
  5. Judicial Review
  6. Articles 32 and 226
  7. Federalism (including financial liberty of states under Articles 282 and 293)
  8. Secularism
  9. The Sovereign, Democratic, Republican structure
  10. Freedom and dignity of the individual
  11. Unity and integrity of the Nation
  12. The principle of equality, not every feature of equality, but the quintessence of equal justice
  13. The "essence" of other Fundamental Rights in Part III
  14. The concept of social and economic justice - to build a Welfare State: Part IV in toto
  15. The balance between Fundamental Rights and Directive Principles
  16. The Parliamentary system of government
  17. The principle of free and fair elections
  18. Limitations upon the amending power conferred by Article 368
  19. Independence of the Judiciary
  20. Effective access to justice
  21. Powers of the Supreme Court under Articles 32, 136, 141, 142
  22. Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act

Important elements among these "basic features", are the fundamental rights granted to individuals by the constitution. The policy forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments passed by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic structure doctrine applies only to constitutional amendments. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

Initial position of the Supreme Court on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine succeeded in Justice Hans Raj Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this breakthrough ruling, the Court refereed that while Parliament has "wide" powers, it did not have the power to destroy or weaken the basic elements or fundamental features of the constitution.

Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread approval and legality due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her trial through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly and was perceived as unparalleled. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitutional Benches of the Supreme Court used the basic structure doctrine to knock down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy. The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".

To summarize, all these features of the Indian Constitution is a constitution suitable to the Indian environment. The Constitution assist India to organise and operate government and administration in an effective way both in the times of peace and war. The basic structure of the Constitution and its most fundamental features are Preamble, Fundamental Rights, and Directive Principles.

The Constitution of India is the supreme law of India.[1] It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens. It is the longest written constitution of any sovereign country in the world.[Note 1][2]B. R. Ambedkar, the chairman of the Drafting Committee, is widely considered to be its chief architect.

It imparts constitutional supremacy and not parliamentary supremacy, as it is not created by the Parliament but, by a constituent assembly, and adopted by its people, with a declaration in its preamble.[3]Parliament cannot override the constitution.

It was adopted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.[4] With its adoption, the Union of India became the modern and contemporary Republic of India replacing the Government of India Act, 1935 as the country's fundamental governing document. To ensure constitutional autochthony, the framers of the constitution repealed the prior Acts of the British Parliament via Article 395 of the constitution.[5] India celebrates its coming into force on 26 January each year, as Republic Day.[6]

It declares India a sovereign, socialist, secular,[7]democraticrepublic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them.[8]

Background

The major portion of the Indian subcontinent was under British rule from 1857 to 1947. When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. The date of 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930.

Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393 and 394 of the Constitution came into force on 26 November 1949 and the remaining articles on 26 January 1950.[9]

Previous legislation used as sources

It is drawn from many sources. Keeping in mind the needs and conditions of India its framers borrowed different features freely from previous legislation viz. Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909, Government of India Act 1919, Government of India Act 1935 and the Indian Independence Act 1947. The last legislation which led to the creation of the two independent nations of India and Pakistan provided for the division of the erstwhile Constituent Assembly into two, with each new assembly having sovereign powers transferred to it, to enable each to draft and enact a new constitution, for the separate states.[citation needed]

Constituent assembly

Main article: Constituent Assembly of India

It was drafted by the Constituent Assembly, which was elected by elected members of the provincial assemblies.[10] The 389 member Constituent Assembly took almost three years (two years, eleven months and eighteen days to be precise) to complete its historic task of drafting the Constitution for independent India, during which, it held eleven sessions over 165 days. Of these, 114 days were spent on the consideration of the draft Constitution. On 29 August 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a draft Constitution for India. While deliberating upon the draft Constitution, the assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled.[11]Dr B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Ganesh Vasudev Mavalankar, Sandipkumar Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some important figures in the assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gurung represented the Gorkha Community.[citation needed] Prominent jurists like Alladi Krishnaswamy Iyer, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members.[citation needed]

The first temporary 2-day president of the Constituent Assembly was Dr Sachchidananda Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly.[10] The members of the Constituent Assembly met for the first time on 9 December 1946.[10]

Drafting

B. N. Rau was appointed as the Constitutional Adviser to the Constituent Assembly in formulating the Indian Constitution in 1946. He was responsible for the general structure of its democratic framework of the Constitution and prepared its initial draft in February 1948.[12] This draft was debated, revised and finally adopted by the Constituent Assembly of India on 26 November 1949.[13]

On 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented.[10] Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. These members were Pandit Govind Ballabh Pant, Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar (Ex-Prime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer). The constitutional advisor was Sir Benegal Narsing Rau (who became First Indian Judge in International Court of Justice, 1950–54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). On D P Khaitan's death, T T Krishnamachari was included in the drafting committee. A draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947, which was debated and over 2000 amendments were moved over a period of two years. Finally on 26 November 1949, the process was completed and the Constituent Assembly adopted the Constitution. 284 members signed the document and the process of constitution making was complete.[14] This day is celebrated as National Law Day[15] or Constitution Day.[16]

The assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. The illustrations on the cover and pages represent styles from the different civilisations of the subcontinent, ranging from the prehistoric Mohenjodaro civilisation, in the Indus Valley, to the present. The calligraphy in the book was done by Prem Behari Narain Raizda. It was published in Dehra Dun, and photolithographed at the offices of Survey of India. The entire exercise to produce the original took nearly five years. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India.[17] Rs.1,00,00,000 was official estimate of expenditure on constituent assembly. It has undergone many amendments since its enactment.[18]

The original 1950 Constitution of India is preserved in helium cases in the Parliament house, New Delhi. There are two original versions of this – one in Hindi and the other in English. The original constitution can be viewed here.[19]

Influence of other constitutions

Structure

The Indian constitution is the world's longest.[Note 1] At its commencement, it had 395 articles in 22 parts and 8 schedules. It is made up of approximately 145,000 words, making it the second largest active constitution in the world. [23] In its current form (September 2012), it has a preamble, 25[Note 2] parts with 448 [Note 3] articles, 12[Note 4] schedules, 5 appendices[24] and 101 amendments, the latest of which came into force on 8 September 2016.[25]

Parts

The individual articles of the constitution are grouped together into the following parts:

Schedules

Schedules are lists in the Constitution that categorise and tabulate bureaucratic activity and policy of the Government.

  • First Schedule (Articles 1 and 4) – This lists the states and territories of India, lists any changes to their borders and the laws used to make that change.
  • Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221) – This lists the salaries of officials holding public office, judges, and Comptroller and Auditor General of India.
  • Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219) – Forms of Oaths – This lists the oaths of offices for elected officials and judges.
  • Fourth Schedule (Articles 4(1) and 80(2)) – This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.
  • Fifth Schedule (Article 244(1)) – This provides for the administration and control of Scheduled Areas[Note 5] and Scheduled Tribes[Note 6] (areas and tribes needing special protection due to disadvantageous conditions).
  • Sixth Schedule (Articles 244(2) and 275(1)) – Provisions made for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.
  • Seventh Schedule (Article 246) — The union (central government), state, and concurrent lists of responsibilities.
  • Eighth Schedule (Articles 344(1) and 351)—The official languages.
  • Ninth Schedule (Article 31-B) – Validation of certain Acts and Regulations.[39]
  • Tenth Schedule (Articles 102(2) and 191(2)) – "Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.
  • Eleventh Schedule (Article 243-G) —Panchayat Raj (rural local government),
  • Twelfth Schedule (Article 243-W) — Municipalities (urban local government).

Appendices

  • Appendix I – The Constitution (Application to Jammu and Kashmir) Order, 1954.
  • Appendix II – Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir.
  • Appendix III – Extracts from the Constitution (Forty-fourth Amendment) Act, 1978.
  • Appendix IV – The Constitution (Eighty-sixth Amendment) Act, 2002.
  • Appendix V – The Constitution (Eighty-eighth Amendment) Act, 2003.

The constitution and the government

Institutions of governance – the Parliament, the President, the Judiciary, the Executive, etc. get their power from the Constitution and are bound by it.[40] With the aid of the Constitution, India is governed by a parliamentary system of government with the executive directly accountable to the legislature. It states that there shall be a President of India who shall be the head of the executive, under Articles 52 and 53. The President's duty is to preserve, protect and defend the constitution and the law under Article 60 of the Indian constitution. Article 74 provides that there shall be a Prime Minister as the head of union cabinet which would aid and advise the President in performing his constitutional duty. Union cabinet is collectively responsible to the House of the People per Article 75(3).

The Constitution of India is federal in nature but unitary in spirit. The common features of a federation such as written Constitution, supremacy of Constitution, rigidity of Constitution, two government, division of powers, bicameralism and independent judiciary as well as unitary features like single Constitution, single citizenship, integrated judiciary, flexible Constitution, a strong Centre, appointment of state governor by the Centre, All-India Services, Emergency Provisions etc. can be seen in Indian Constitution. This unique combination makes it quasi-federal in form.[41]

Each state and each Union territory of India has its own government. Analogous to President and Prime Minister, each has a Governor (in case of states) or Lieutenant Governor (in the case of Union territories) and a Chief Minister. Article 356 permits the President to dismiss a state government and assume direct authority when a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. This power, known as President's rule, was abused earlier as state governments came to be dismissed on the flimsiest of grounds, and more due to the political discomfiture of the party in power at the centre. Post – Bommai judgment,[42][43] such a course of action has been rendered rather difficult, as the courts have asserted their right to review it.[44] Consequently, very few state governments have been disbanded since.

The 73rd and 74th Amendment Act also introduced the system of Panchayati Raj in rural areas and Municipality in urban areas. Also, Article 370 of the Constitution gives special status to the State of Jammu and Kashmir.

The constitution and the legislature

Main article: Amendment of the Constitution of India

See also: List of amendments of the Constitution of India

Amendment

The process of addition, variation or repeal of any part of the constitution by the parliament under its constituent powers, is called amendment of the constitution.[45] The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds members are present and voted. In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures. Unlike the ordinary bills under legislative powers of Parliament as per Article 245 (with exception to money bills), there is no provision for joint sitting of the two houses (Lok Sabha and Rajya Sabha) of the parliament to pass a constitutional amendment bill. During recess of Parliament, President can not promulgate ordinances under his legislative powers per Article 123, Chapter III which needs constitutional amendment. Deemed amendments to the constitution which can be passed under legislative powers of Parliament, are no more valid after the addition of Article 368 (1) by Twenty-fourth Amendment of the Constitution of India.[45]

As of September 2015[update], there have been 120 amendment bills presented in the parliament, out of which 100 have been passed to become Amendment Acts.[46] Despite the supermajority requirement for amendments to pass, the Constitution of India is the most frequently amended national governing document in the world.[47] The Constitution is so specific in spelling out government powers that many of these amendments address issues dealt with by ordinary statute in other democracies. As a result, the document is amended roughly twice a year, and three times every two years.

In 2000, the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution.[48] Government of India, establishes term based law commissions to recommend law reforms for maximising justice in society and for promoting good governance under the rule of law.

Limitations

Main article: Basic structure doctrine

The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that an amendment cannot destroy what it seeks to modify, which means, while amending anything in the Constitution, it cannot tinker with the "basic structure" or its framework, which is immutable. Such an amendment will be declared invalid even though no part of the constitution is explicitly prevented from being amended, nor does the basic structure doctrine protect any single provision of the Constitution. Yet, this "doctrine of basic features" lays down that, the Constitution when "read as a whole", that what comes to be understood as its basic features cannot be abridged, deleted or abrogated. What these "basic features" are, have not been defined exhaustively anywhere,[40] and whether a particular provision of the Constitution of India is a "basic feature" is decided as and when an issue is raised before a court in an instant case.[49]

The judgment in the Kesavananda Bharati v. State of Kerala case laid down the following as the basic structure of the constitution of India:[50]

  1. The Supremacy of the Constitution
  2. Republican and Democratic form of the Government
  3. Secular Character of the Constitution
  4. Maintenance of Separation of powers
  5. The Federal Character of the Constitution[50]

This implies that the Parliament, while amending the Constitution, can only amend it to the extent so as to not destroy any of the aforesaid characters. The Supreme Court/High Court(s) may declare the amendment null and void if this is violated, by performing Judicial review. This is typical of Parliamentary governments, where the Judiciary has to exercise an effective check on the exercise of the powers of the Parliament, which in many respects is supreme.

In the Golak Nath v. State of Punjab case of 1967, the Supreme Court ruled that the State of Punjab could not restrict any of the Fundamental rights protected by the basic structure doctrine.[51] Extent of land ownership and practice of profession, in this case, were held to be a fundamental right.[52] The ruling of the Golak Nath v. State of Punjab case was eventually overturned with the ratification of the 24th Amendment in 1971.[52]

The constitution and the judiciary

The Judiciary interprets the Constitution as its final arbiter.[53] It is its duty as mandated by the Constitution, to be its watchdog, by calling for scrutiny any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping bounds set for them by the Constitution.[54] It acts like a guardian in protecting the fundamental rights of the people, as enshrined in the Constitution, from infringement by any organ of the state. It also balances the conflicting exercise of power between the centre and a state or among states, as assigned to them by the Constitution.

While pronouncing decisions under its constitutional mandate, it is expected to remain unaffected by pulls and pressures exerted by other branches of the state, citizens or interest groups. And crucially, independence of the judiciary has been held to be a basic feature of the Constitution,[55][56] and which being inalienable, has come to mean – that which cannot be taken away from it by any act or amendment by the legislature or the executive.[57]

Judicial review

Judicial review is adopted in the Constitution of India from judicial review in the United States.[58] In the Indian constitution, Judicial review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that:

  1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.[59]
  2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio.
  3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.[60]

Due to the adoption of the thirty-eighth amendment, the Indian Supreme Court was not allowed to preside over any laws adopted during a state of emergency that infringes upon fundamental rights under article 32 i.e. Right to Constitutional Remedies.[61] Later with the Forty-second Amendment of the Constitution of India, article 31 C was widened and article 368(4) and 368(5) were added, which stated that any law passed by the parliament can't be challenged in the court on any ground. The Supreme court in the Minerva Mills v. Union of India case said that Judicial Review is one of the basic character of the constitution and therefore can't be taken away quashing Article 368(4)&(5) as well as 31 C.

The constitution – a living document

"The Indian Constitution is first and foremost a social document, and is aided by its Parts III & IV (Fundamental Rights & Directive Principles of State Policy, respectively) acting together, as its chief instruments and its conscience, in realising the goals set by it for all the people."[Note 7][62]

The Constitution's provisions have consciously been worded in generalities, though not in vague terms, instead of making them rigid and static with a fixed meaning or content as in an ordinary statute, so that they may be interpreted by coming generations of citizens with the onward march of time, to apply to new and ever-changing and demanding situations, making the Constitution a living and an organic document.[63] Justice Marshall asserts: “It is the nature of (a) Constitution that only its great outlines be marked”. It is a document intended “to endure for ages” and therefore, it has to be interpreted not merely on the basis of the intention and understanding of the its framers but on the experience of its working effectively, in the existing social and political context.

For instance, "right to life" as guaranteed under Article 21,[nb 1] has by interpretation been expanded to progressively mean a whole lot of human rights[nb 2]

In the conclusion of his Making of India's Constitution, Justice Khanna writes:

"If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people."[67]

See also

Notes

Notes on Article 21

References

Dr. Babasaheb Ambedkar, chairman of the Drafting Committee, presenting the final draft of the Indian Constitution to Dr. Rajendra Prasad on 25 November 1949
A meeting of the Constituent Assembly of India, 1950 CE
  1. ^ abThe Constitution of Yugoslavia briefly held this position from 1974 till the nation split up in 1990.
  2. ^The Constitution was in 22 Parts originally. Part VII & IX (older) was repealed in 1956, whereas newly added Part IVA, IXA, IXB & XIVA by Amendments to the Constitution in different times (lastly added IXB by the 97th Amendment).
  3. ^Although the last article of the Constitution is Article 395, the total number, as of March 2013 is 465. New articles added through amendments have been inserted in the relevant location in the original constitution. In order not to disturb the original numbering, the new articles are inserted with alpha numeric enumerations. For example, Article 21A pertaining to Right to Education was inserted by the 86th Amendment Act.
  4. ^By 73rd & 74th Amendment, the lists of administrative subjects of Panchayat raj & Municipality included in the Constitution as Schedule 11 & 12 respectively in the year 1993.
  5. ^Scheduled Areas are autonomous areas within a state, administered federally, usually populated by a predominant Scheduled Tribe.
  6. ^Scheduled Tribes are groups of indigenous people, identified in the Constitution, struggling socioeconomically
  7. ^These lines by Granville Austin from his book The Indian Constitution: Cornerstone of a Nation at p. 50, have been authoritatively quoted many times
  1. ^Art. 21 – "No person shall be deprived of his life or personal liberty except according to procedure established by law"
  2. ^Right to speedy trial[64]
    Right to water[65]
    Right to livelihood
    Right to health
    Right to education[66]

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