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constitutional_law:part-1:salient-features

Salient Features Of The Constitution

If we look at the various Constitutions of the world, we would come across a variety of features of these Constitutions. Broadly speaking these Constitutions are classified on the basis of the political systems which are adopted by them. Modern political systems are of four categories on four different bases.

Firstly there are democratic and authoritarian governments – the classification being based on extent of popular participation and extent of autonomy of the system.

Second is based on legislature – executive relationship in a democratic polity. We distinguish them as Parliamentary and Presidential political system. Third, political system is classified between federal and unitary on the basis of geographical distribution of powers.

Finally, depending on the economic structure, we classify political systems as capitalist and socialist governments.

In adition to the above, these is another classification popularly known as having written and unwritten Constitution. In most of the political systems the Constitutions are written one. It is only in Britain that the Constitution is categorise as unwritten. There had been a controversy in respect of Constitution of England. Some thinkers are of the opinion that there is no Constitution in England as such whereas some other say that it has the oldest Constitution in the world.

These observations are the result of different interpretations of the single document, written and enacted at a particular time, embodying the fundamental special sanctity. Such a Constitution may be drawn up either by a convention or Assembly abated for that purpose, or may be promulgated by a monarch or a dictator. Bush Paine and Tocqueville had their eyes fixed on form rather than on substance. Prof Dicey tries to remove the confusion and defines the ‘Constitutions’ as the British understand it, as the sum total of “rules which directly or indirectly affect the distribution or the exercise of a sovereign power in the State.”

To sum up, there is a Constitution in England which was never enacted and is not written. It is the result of gradual evolution of political institution over the centuries and is based on evolution of conventions, which can be modified either by fresh conventions or by laws of the sovereign Parliament ‘It is a child of wisdom and chance, whose powers have been some times guided by accident and sometimes by high design.’

Written Constitution

Unlike the Constitution of England, Constitutions of the United States of America, Canada, France, India are written Constitutions, though these differ from each other in one way or the other. The Constitution of India has the distinction of being the lengthiest and detailed Constitutional document the world has so far produced. It has been the endeavors of the framers of the Constitution to provide for the solutions of all the problems of administration and government of the country. Even those matters which are subjects of convention in others countries have been put down in black and white in the Constitution of India. The Constitution of U.S.A. comprises only seven Articles, the Australian has 128 Articles and the Canadian contains 147 Articles. In order to prepare such a voluminous Constitution, the founding fathers of the Indian Constitution time consumed 2 years, 11 months and 18 days. It is sometimes asked why the framers of Indian Constitution deemed it necessary to draw up such a ponderous constitutional document and ignored what Sir Ivor Jennings has described as the golden rule for all constitution makers, viz., “never to put in anything that can be safely left out.” The answer as Sir Ivor Jennings has himself pointed out is, that the great volume of the Indian Constitution is largely a legacy of the past.

For a federation it is essential that its Constitution should be a written one so that both the units, the States and the Centre can refer to it as and when the need be. Accordingly, the Constituent Assembly prepared a written constitution containing 395 Articles and 12 Schedules Hence, it is the most elaborate Constitution of the world and it took almost three years in completing it.

Partly Rigid and Partly Flexible

Another feature of Indian Constitution which separates it from other constitutions of the world is that it is partly rigid and partly flexible. The procedure laid down by the Constitution for its amendment is neither very easy, as in England nor very rigid as in the United States. In England, which has no written Constitution, there is no difference between an ordinary law and a constitutional law. The constitutional law can be amended exactly in the same manner in which ordinary legislation is passed or amended. In the United States, however, the method of constitutional amendment is highly rigid. It can be carried out only with the agreement of the two third majority of the Congress i.e. the legislative body or the Parliament and its subsequent ratification by at least three fourth of the states. The Constitution of India strikes a golden mean, thereby avoiding the flexibility of the British Constitution and the extreme rigidity of the American Constitution.

In India, only the amendment of a few of the provisions of the Constitution require ratification by the State Legislatures and even that ratification by only ½ of them would suffice (while the American Constitution requires ratification by ¾ of the states). The rest of the Constitution may be amended by a special majority of the Union Parliament i.e. a majority of not less than 2/3 of the members of each House present and voting, which again must be a majority of the total membership of the House.

Besides the above mentioned methods, Parliament has been given the powers to alter or modify the provisions of the Constitution by a simple majority as is required for general legislation, by laying down in the Constitution that such changes shall not be deemed to be ‘amendments’ of the Constitution. It is important to note that in more than 62 years, a number of constitutional amendments have been passed. This indicates that Indian Constitution is flexible. However, it should be remembered that the basic structure of our Constitution can not be amended.

Federal System with Unitary Bias

A prominent characteristic of our Constitution is a Federal System with the Unitary base. In others words, though normally the system is federal, the Constitution enables the federation to transform into a Unitary State.

Federalism is a modern concept. Its theory and practice in modern times is not older than American federation which came into existence in 1787. In a federal set up there are two tiers of government with well defined powers and functions. In such a system the Central government and the governments of the units act within a well defined sphere, coordinate with each other and at the same time act independently. The federal polity, in other words, provides a constitutional India-I device for bringing unity in diversity and for the achievement of common national goals.

Federal Features

The Indian federal system of today has such characteristics which are essential for the federal polity. The main federal features of the Indian Constitution are as follows :

Written and Rigid Constitution

An essential characteristic of a federation is that the Constitution should not only be written but it should be rigid also. This rigidity is specially desired by the federating units so that the Centre subsequently does not change the list of subjects to suit its convenience. In other words, it cannot be changed easily. All the provisions of the Constitution concerning Union-States relations can be amended only by the joint action of the State Legislature and the Union Parliament. Such provisions can be amended only if the amendment is passed by 2/3 majority of the members present and voting in the Parliament (which must also constitute the absolute majority of the total membership) and ratified by at least one half of the States.

Supremacy of the Constitution

In a federation, the Constitution should be supreme both for the Centre as well as the federating units. The Constitution is the supreme law of the land and the laws passed by the Union or the State governments must conform to the Constitution. Accordingly, India’s Constitution is also supreme and not the handmade of either the Centre or of the States. If for any reason any organ of the State violates any provision of the Constitution; the courts of law are there to ensure that the dignity of the Constitution is upheld at all costs.

Division of Powers

In a federation there should be clear division of powers so that the units and the Centre are required to enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon the functions of others. This requisite is evident in our Constitution. The Seventh Schedule contains three Legislative Lists, viz Union List, Sate List and Concurrent List.

  • The Union Lists consists of 97 subjects, the more important of which are defence, foreign affairs, post and telegraph, currency etc.
  • The State List has 66 subjects including – jails, police, administration of justice, public health, agriculture etc.
  • The Concurrent List embraced 47 subjects including criminal law, marriage, divorce, bankruptcy, trade unions, electricity, economic, social planning and education etc.

The Union government enjoys legislative powers to legislate on the subjects mentioned is the Union List. The state governments have full authority to legislate on the subjects of the State List. Both the Centre and the States can legislate on the subjects mentioned in the concurrent list such as education, stamp duty, drugs and poisoneous substances, newspapers etc. However, in case of a conflict between the Union and the State law relating to the same subject, the Union law prevails over the State law. Besides, the power to legislate on all those subjects which are not included in any of the three lists are known as ‘Residuary Subjects’. These rest with the Union government.

Independence of Judiciary and Provision of Supreme Court

For a federation, it is essential that the judiciary should be independent there must be provision of Supreme Court to settle federal disputes. It should be custodian of the Constitution. If any law contravenes any provision of the Constitution, the apex court i.e. the Supreme Court of India can declare it as null and void or unconstitutional. In order to ensure the impartiality of the judiciary, the Chief Justice or the judges can not be removed by the executive nor their salaries can be curtailed by the Parliament.

Bicameral Legislature

A bicameral system is considered necessary for a federation. In the Upper House i.e. Council of States, representation is given to the States. In the House of the People or Lok Sabha, the elected members represent the people. The members of Rajya Sabha are elected by the State Legislative Assemblies, but unlike the Senate of the United States (wherein all the 50 States big or small, only two senators are elected), equal representation is not given to 28 States in India.

Unitary Features

Looking at these features, political thinkers are of the opinion that India has a federal set up. The framers of the Indian Constitution have a different view point. They opinion that Indian federation is actually not a true federation as India-I there are certain non-federal features, hence India is federal in form but unitary in spirit. Hence, it would be proper to examine the unitary characteristics of the Indian Union :

A Strong Centre

From the division of powers one can make out that the State governments are government of limited and enumerated powers. As against this, the Union government under certain circumstances has power over the State governments and also the control over the residuary subjects.

Single Constitution for the Union and the States

Normally, under a federal set up, the States have their own Constitutions i.e. separate from that of the Union. Such is the case in the United States. On the contrary there is only one Constitution for the Union and the states and there is no separate Constitution for the States in India.

Single Unified and Integrated System of Judiciary

The States of the United States have their own judicial system independent and uncoordinated with the federal judiciary. Australia also has more or less the same pattern. But in India the Supreme Court and the High Courts form a single integrated judicial system. The civil and the criminal law are codified and are applicable to the entire country.

Common All India Services

The Indian Constitution has certain special provisions to ensure the uniformity of the administrative system and to maintain minimum common administrative standards without impairing the federal principle. For this purposes a provision has been made for common all Indian Services.

Appointment of the Governor by the President

The Head of the State, the Governor, is not elected like the Governors of American States. In India, they are appointed by the President, They hold the office during his/her pleasure. The President can transfer him/her from one state to another state, On certain occasions he/she can be asked to look after one or more states. This enables the Union government to exercise control over the State administration.

Critical Analysis of Indian Federalism

The founding fathers of the Indian Constitution were deeply concerned about ensuring the unity and integrity of the country. They were aware of the forces of disruption and disunity working within the country. These changes, at the time of independence, could be handled only by a strong government at the Centre. Hence, the framers of the Constitution assigned a predominate role to the Centre. At the same time they made provisions for the establishment of a co- operative federalism. It is also a fact that during the working of the last six decades, the relations between the Centre and the States have not always been cordial.

It may be noted that unity and diversity are very well co-ordinated in federal system. The units of a federation enjoy political and economic autonomy in their internal administration. It is a fact that federation is based on the principle decentralisation. It implements the idea that the government should be nearer the people so that they can reach it. Local problems can be more easily solved by the local and regional government, rather than one over – burdened central government. Division of powers leads to greater efficiency. Stability is better maintained in the federal system.

On the other hand, federal government has certain shortcomings also. Different political parties in power at the Centre and in some of the States, the possibility of political clashes is increased. No doubt, federalism is certainly an expensive system. Herman Finer correctly opined, “It is financially expensive since there is a lot of duplication of administrative machinery and procedure. It is wasteful of time and energy, and that it depends much on negotiations, political and administrative, to secure uniformity of law and proper administrative fulfillment.” In India, after every crisis, the centre has emerged more powerful than before, which shows that crisis can be better solved by a powerful central government. This proves the weakness of federalism and strength of the unitary government. However, despite certain shortcomings, the federal government appears a better and fair alternative.

While summing up, one seems to be agreeing with Durga Das Basu that India is neither purely federal nor purely unitary but is a combination of both. It is a Union or Composite State of a novel type. Political thinkers have stated that the Central government has, in fact, such extraordinary authority that India is not more than a ‘quasi – federal’ at best, or that if it is a federation at all, it has many unitary features. In the words of G. N. Joshi, “These, then, are some of the special features of the Indian Union. It both resembles and differs from other federations. It may correctly be described as a ‘Quasi – Federation’ with many elements of unitarity.”

Summary

The Constitution of India has several distinctive features. It is the lengthiest written Constitution in the world and it is a combination of rigidity and flexibility. The Constitution provides for a quasi-federal set up with a strong center. There is a class division of powers between the Center and the States. There is an independent single unified system of judiciary. The Supreme Court of India is the apex court of India. There are certain unitary features in the Indian Constitution such as Single Constitution, Single Citizenship, All India Services and the distribution of power in favour of the Center. India has a Parliamentary form of government headed by the Prime Minister who is responsible to the Parliament both individually and collectively.

Created on 2021/01/19 20:00 by LawPage • Last modified on 2021/01/19 20:00 by LawPage