Notes and Articles for Law students

User Tools

Site Tools


constitutional_law:salient_features_of_the_constitution_182031122018

Salient Features Of The Constitution Of India

The Constitution of India is unique in many ways. It has several special features that distinguish it from other constitutions of the world.

WRITTEN CONSTITUTION

Indian Constitution is a written Constitution. It took 2 years, 11 months and 18 days for drafting it. It is an elaborate document and contains 395 articles (divided into 22 parts) and 12 Schedules. A Constitution may be written or unwritten. A written Constitution is one, which is written down in the form of a Constitutional document whereas the British Constitution is characterized as an unwritten Constitution because it is not embodied in one comprehensive constitutional document.

LONGEST CONSTITUTION

The Constitution is the longest Constitution of the world.This is due to the inclusion of many matters which could legitimately be the subject matters of ordinary legislation or administrative action. This happened because the Government of India Act, 1935, which was after all basically a statute, was used as a model and an initial working draft and large portions of it got reproduced in the constitution. the size, complexities and the diversities of the Indian situation also necessitated several special, temporary, transitional and miscellaneous provisions for certain regions of the country or classes of people.Constitution Of India includes elaborate provisions regarding center and state relations, inclusion of various concepts like fundamental Rights, Directive principles of state policy, parliamentary system, emergency provisions and provisions related to safeguarding of interests of various communities, castes and groups like Schedule Castes, Schedule Tribes, Backward Classes etc.

PARTLY RIGID AND PARTLY FLEXIBLE

The Constitution of India is partly rigid and partly flexible. The procedure laid down in the Indian Constitution strikes a golden mean by avoiding extreme rigidity and extreme flexibility. A constitution may be called rigid or flexible on the basis of its amending procedure. In a rigid constitution, amendment of the constitution is not easy. The Constitutions of USA, Switzerland and Australia are considered rigid constitutions. While, the British Constitution is considered flexible because amendment procedure is easy and simple. There are three approaches via which the amendment in the Constitution is made:

  1. Through simple majority: amendment can be done by the two houses of Parliament simple majority of the members present and voting of before sending it for the President’s assent.
  2. Through special majority: an amendment can be passed by each House of Parliament by a majority of the total members of that House as well as by the 2/3rd majority of the members present and voting in each house of Parliament and send to the President for his assent which cannot be denied.
  3. Through ratification: besides the special majority mentioned in the second category, the same has to be approved also by at least 50% of the State legislatures, this process is called amendment through ratification.

SOCIALIST STATE

Prior to 42nd Amendment of Constitution, the word ‘Socialist’ was not mentioned in the Preamble. It was only after the 42nd amendment in 1976, the expression ‘socialist’ was added to the Preamble. The word Socialism is used in democratic as well as socialistic Constitutions. It has no definite meaning. In general however, it means some form of ownership of the means of production and distribution by the State. The degree of State control will determine whether it is a democratic State or socialistic State. India has, however chosen its own brand of socialism i.e., mixed economy. The Supreme Court has in number of its decision referred to the concept of Socialism and has used this concept along with the Directive Principles of State Policy to assess and evaluate economic legislation. According to the Supreme Court, the principal aim of socialism is to eliminate inequality of income and standards of life, and to provide a decent standard of life to the working people the Court has laid emphasis on social justice so as to attain substantial degree of social economic and political equality. Social justice and equality are complementary to each other. By reading the word ‘socialist’ in the Preamble with the Fundamental Rights contained in Arts. 14 and 16, the Supreme Court has deduced the Fundamental Right to equal pay for equal work and compassionate appointment.

SECULAR STATE

India is a country with many religions but the Constitution stands for a secular state of India. The word ‘secular’ was not originally present in the Preamble. It was added thereto by the 42nd Constitutional Amendment in 1976. The term ‘Secularism’ means a State which has no religion of its own as recognised religion of the State. Secularism in India does not mean an irreligious or an anti-religious state. It only means:

  1. there is no official religion for India and the Parliament has no right of imposing a particular religion as an official religion,
  2. It also means that all citizens, irrespective of their religious beliefs, are to be considered and treated as equal and
  3. no discrimination is to be shown by the State against any person on account of his/her religion either for participation in political affairs or entry into government service or admission into educational institutions. The Constitution ensures equal freedom for all the religions and provides that the religion of the citizen has nothing to do in socio-economic matters. “Though the Indian Constitution is secular and does not interfere with religious freedom, it does not allow religion to impinge adversely on the secular rights of the citizens or the power of the State to regulate socio-economic relations.”[8]

WELFARE STATE

India is a welfare state. The Indian Constitution incorporates the principles of social welfare and the social justice so as to achieve the ultimate object of the state i.e., to render social services to the people and promote their general welfare. The Preamble also, clearly depicts the existence of such a welfare state, which is for the common good of the people.

SOVEREIGN, DEMOCRATIC, REPUBLIC

Sovereign, mean supreme and independent. India is internally and externally a Sovereign State. Thus, the citizens enjoy the sovereign power to elect the representatives and the State is also free from any external control or foreign power. Democracy is generally known as government of the people, by the people and for the people. It signifies that the real power emanates from the people. In India, the election is carried out by the process of universal adult franchise so as to elect their representatives for the Parliament and State Legislature. The Preamble declares India as a Republic. It means that the head of the State is not a hereditary ruler rather is indirectly elected for a fixed tenure. The President of India is elected by an electoral college for a term of five years.

FEDERAL STATE WITH UNITARY BIAS

India’s Constitution is a quasi-federal in nature. India has assumed a Federal structure. It establishes a dual polity, a two-tier governmental system i.e., one Central Government and the State Government for each State. Further, like all the federations, India also has a written Constitution. Also, the Supreme Court acts like a guardian of the Constitution, which is independent from the other organs of the Country. The Indian federal Scheme while incorporating the advantages of a federal structure, yet seeks to mitigate some of its usual weaknesses of rigidity and legalism. There are certain characteristics, which exhibit a unitary bias in the Indian Constitution. Within the Constitutional framework, the Central Government has a more dominant role to play than the State. The Concurrent list which contains subject of the common interest of both the Centre and State, the word of the Central Government is final. Further, the residuary subjects have also been given to the Centre. Even during the emergency, the Union becomes more powerful. Thus, this is the most remarkable and unique feature of the Constitution of India as it has conferred a federal system with the strength of Unitary Government.
Instead of the word “federation” the word “Union” was deliberately selected by the Drafting Committees of the Constituent Assembly to indicate two things viz.

  1. that the Indian Union is not the result of an agreement by the States and
  2. the component states; have no freedom to secede from it. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.

INDEPENDENCE OF JUDICIARY

A notable feature of the Constitution is that it accords a dignified and crucial position to the judiciary. A well-ordered and well- regulated judicial machinery has been introduced in the Country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very broad. It is the general court of appeal from the High Courts, the ultimate arbiter in all the Constitutional matters and enjoys an advisory jurisdiction. It can hear appeals from any court or tribunal in the country and can issue writs for enforcing the Fundamental Rights. There is thus a good deal of truth in the assertion that the Supreme Court of India has wider powers than the highest court in any other federation. Judiciary is an independent organ from the legislature and the executive as it has been assigned with crucial role. It acts as an adjudicator between disputes of not only two persons but also between a person and a state. Further, it is entitled to scrutinize the governmental orders and interpret the Constitution. There are various provisions included in the Constitution to ensure the impartiality and independence of judiciary. Judges once appointed cannot be removed at the will of the executive, they hold their office till the superannuation age. Also, for the removal of the judges a special procedure is laid down in the Constitution.

SINGLE CITIZENSHIP

Another important feature of our Constitution is single citizenship. All the Indians irrespective of their domicile enjoys single citizenship of India so as to foster strong bonds of social and political unity among the people of India who are divided on various grounds.

FUNDAMENTAL RIGHTS, FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY

Fundamental Rights are the basic rights, which is entitled to every citizen of India. They have been the most justiciable and inviolable rights is included as the part of basic structure doctrine by the Supreme Court. But it is not absolute, there are certain reasonable restrictions imposed on the fundamental rights to curtail the unlimited powers to the citizens. The fundamental duties were added to the Constitution after the 42nd Amendment in 1976. Article 51 A was inserted as Part IV A of the Constitution. The citizens along with enjoying the Fundamental Rights have to perform certain obligations i.e., duties. However, they are not judicially enforceable. Along with fundamental rights and duties there are certain principles which are contained in the Part IV of the Constitution and are in nature of directives to Government to provide social and economic justice to the citizens.

EMERGENCY PROVISIONS

Centre has the power to take complete control of the State in the following 3 situations,known as emergency:

  • Financial Emergency (art 360)

    In all the above cases, an elected state government can lose control of the state and a central rule can be established. In the first case, it is very clear that such a provision is not only justified but necessary to protect the existence of a state. A state cannot be left alone to defend itself from outside aggression. In the third case also, it is justified because a financial emergency could cause severe stress among the population, plunge the country into chaos and jeopardize the existence of the whole country. Such provisions exist even in USA. The second provision is most controversial. It gives the center the power to take over the control of a state. However, such an action can be taken only upon the advice of the governor and such an advice is not beyond the purview of the Supreme Court. In a recent case, Supreme Court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.

UNIVERSAL ADULT FRANCHISE

Indian democracy functions on the basis of ‘one person one vote’. Every citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective of caste, sex, race, religion or status. The Indian Constitution establishes political equality in India through the method of universal adult franchise.

PARLIAMENTARY DEMOCRACY

India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy there is a close relationship between the legislature and the executive. The Cabinet is selected from among the members of legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long as it enjoys the confidence of the legislature. In this form of democracy, the Head of the State is nominal. In India, the President is the Head of the State. Constitutionally the President enjoys numerous powers but in practice the Council of Ministers headed by the Prime Minister, which really exercises these powers. The President acts on the advice of the Prime Minister and the Council of Ministers.

SEPARATION OF POWERS

Article 50: This states that the State or the Government concerned will take appropriate steps to ensure that the judicial branch is separated from the functioning and working of the executive branch.

Article 121 & 211: It, in a way, provides for the separation of the legislature and the judiciary. This article states that the conduct of justice or the way a judge discharges his duties of any Court cannot be discussed in the legislature (state or union).

Article 122 & 212: This article is aimed at keeping the judiciary (the law interpreting body) and the legislature (the law-making body) separated. It does so by stripping the judiciary of any power to review and question the validity of proceedings that take in a legislature or the Parliament.

Article 361: This article separates the judiciary and the executive. It states that the President or any governor of any state is not answerable to any court in the country for actions and activities are taken in performance/exercise of the powers and duties of their office.

Created on 2020/10/19 23:13 by • Last modified on 2020/12/11 09:08 by LawPage