SALIENT FEATURES OF CONSTITUTION (PART 2)
INDEPENDENT AND INTEGRATED JUDICIARY
- The Constitution of India establishes an independent and integrated Judiciary.
- The Indian Constitution has adopted number of measures to ensure the independence of judiciary. The legislature is not involved in the appointment of judges to avoid any kind of partisanship. The fixed tenure of judges ensures that judges will perform without fear or favour. The Constitution prescribes difficult procedure for the removal of judges. Judiciary is not financially dependent to legislature as their salaries and allowances are not subjected to the approval of the legislature.
- But the independence of judiciary does not mean arbitrariness or absence of accountability. It is accountable to the Constitution, to the democratic traditions and to the people of the country.
- The Constitution provides for a single integrated judiciary system in India. The hierarchical structure of judiciary is such that Supreme Court is at the top, High Courts below them and district and subordinate courts at the lowest level.
- Unlike USA, where federal laws are enforced by federal court and state laws by state courts, this single integrated system of judiciary enforces both central laws and state laws in India.
- The Constitution of India guarantees all its citizens fundamental rights. It is called fundamental to suggest that these rights are so important that Constitution has separately listed them and made special provisions for their protection.
- These rights are binding on legislature as well as executive.
- India borrowed the concept of Fundamental Rights from American Constitution.
- Fundamental rights are different from ordinary rights. While ordinary laws are protected and enforced by ordinary law, the fundamental rights are protected by Constitution itself.
- Unlike ordinary rights, fundamental rights can be changed only by amending the Constitution itself.
- The Fundamental rights enshrined in our Constitution are:
- No branch of the state, legislature, executive or even judiciary, can act in a manner that violates these rights. Any act of legislature or order of executive can be declared as null and void if it violates any of Fundamental Rights guaranteed in the Constitution.
- The Fundamental rights are justiciable which means they can be enforced through a court of law.
- If these rights are violated, citizens can approach Supreme Court or High Court to restore these rights. The Courts can issue various special orders called writs for the enforcement of the fundamental rights. Habeas Corpus, Mandamus, Prohibition, Quo Warranto, Certiorari are the five writs issued by Higher courts.
- But Fundamental rights are not absolute and unlimited. Government can impose reasonable restriction for common good.
DIRECTIVE PRINCIPLES OF STATE POLICY
- Constitution borrowed the principle of Directive Principles of State Policy from Ireland, modeled on ‘Principles o Social Policy’ contained in Irish Constitution.
- Part IV, Articles 36-51 of the Indian Constitution constitutes the Directive Principles of State Policy which contain the broad directives or guidelines to be followed by the State while establishing policies and laws.
- Article 37 of Indian Constitution states that the Directive 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.
- This is meant for promoting the ideal of a social and economic democracy.
- DPSP is not justiciable, meaning they cannot be enforced by a court of law. The court cannot declare any law as void on the ground that it contravenes the DPSP.
While most of the Fundamental Rights are negative obligations on the state (since it limits the scope of state action), DPSP are positive obligations on the state, though not enforceable in a court of law. The main objective of fundamental rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of directive principles of state policy is to establish just social and economic order.
- Fundamental Duties was not included in original Constitution which came to existence in January 26, 1950. It was added by the 42nd Amendment, 1976 by introducing Article 51A as Part IVA of the Constitution upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year.
- Like Directive Principles of State Policy, it is also non-justiciable (not enforceable) in nature.
- India borrowed the concept of Fundamental Duties from USSR.
- Part IVA lists eleven fundamental duties
BORROWED FEATURES OF INDIAN CONSTITUTION
|Name of Countries||Borrowed Features|
|Britain||1. Parliamentary government
2. Rule of Law
3. Legislative procedure
4. Single citizenship
5. Cabinet system
6. Prerogative writs
7. Parliamentary privileges
|1. Directive Principles of State Policy
2. Method of Election of the president
3. Members nomination to the Rajya Sabha by the President
|Unites States of America||1. Impeachment of the president
2. Functions of president and vice-president
3. Removal of Supreme Court and High court judges
4. Fundamental Rights
5. Judicial review
6. Independence of judiciary
7. Preamble of the Constitution
|1. Centrifugal form of federalism where the centre is stronger than the states.
2. Residuary powers vest with the centre
3. Centre appoints the Governors at the states
4. Advisory jurisdiction of the supreme court
|1. Concept of Concurrent list
2. Joint sitting of the two houses
3. Freedom of trade and commerce
|USSR (Now Russia)
|1. Fundamental duties
2. The ideals of justice (social, economic and political), expressed in the Preamble.
|1. Concept of “Republic”
2. Ideals of Liberty, Equality and Fraternity(contained in the Preamble)
|1. Fundamental Rights are suspended during Emergency|
|1. Election of members of the Rajya Sabha
2. Amendment of the Constitution
|Japan||1. Concept of “procedure established by Law”|
SCHEDULES OF THE CONSTITUTION
- Indian Constitution originally had 8 schedules. Now it has 12 schedules.
- The 9th schedule was added via First Amendment Act in 1951, to insulate land reform acts of various state governments from judicial scrutiny. The laws listed in this schedule were exempted from judicial scrutiny. On January 11, 2007, Supreme Court ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution.
- 10th Schedule was first added by 35th Amendment to designate Sikkim as Associate State. Once Sikkim became a state of India in 1975, the 10 Schedule was repealed. But later added once again by 52th Amendment Act, 1985 as a part of Anti-defection law.
- 11th and 12 schedules were added as 73rd and 74th Amendments, to give constitutional status to Panchayathi Raj Institutions and Municipalities.
|LIST OF SCHEDULES OF INDIAN CONSTITUTION|
PARTS OF CONSTITUTION
|Parts||Subject Matter||Articles Covered|
|I||The Union and its territory||1 to 4|
|II||Citizenship||5 to 11|
|III||Fundamental Rights||12 to 35|
|IV||Directive Principles of State Policy||36 to 51|
|V||The Union Government||52 to 151|
|Chapter I – The Executive||52 to 78|
|Chapter II – Parliament||79 to 122|
|Chapter III – Legislative Powers of President||123|
|Chapter IV – The Union Judiciary||124 to 147|
|Chapter V – Comptroller and Auditor-General of India||148 to 151|
|VI||The State Governments||152 to 237|
|Chapter I – General||152|
|Chapter II – The Executive||153 to 167|
|Chapter III – The State Legislature||168 to 212|
|Chapter IV – Legislative Powers of Governor||213|
|Chapter V – The High Courts||214 to 232|
|Chapter VI – Subordinate Courts||233 to 237|
|VIII||The Union Territories||239 to 242|
|IX||The Panchayats||243 to 243-O|
|IX-A||The Municipalities||243-P to 243-ZG|
|IX-B||The Co-operative Societies||243-ZH to 243-ZT|
|X||The Scheduled and Tribal Areas||244 to 244-A|
|XI||Relations between the Union and the States||245 to 263|
|Chapter I – Legislative Relations||245 to 255|
|Chapter II – Administrative Relations||256 to 263|
|XII||Finance, Property, Contracts and Suits||264 to 300-A|
|Chapter I – Finance||264 to 291|
|Chapter II – Borrowing||292 to 293|
|Chapter III – Property, Contracts, Rights, Liabilities, Obligations and Suits||294 to 300|
|Chapter IV – Right to Property||300-A|
|XIII||Trade, Commerce and Intercourse within the Territory of India||301 to 307|
|XIV||Services under the Union and the States||308 to 323|
|Chapter I – Services||308 to 314|
|Chapter II – Public Service Commissions||315 to 323|
|XIV-A||Tribunals||323-A to 323-B|
|XV||Elections||324 to 329-A|
|XVI||Special Provisions relating to Certain Classes||330 to 342|
|XVII||Official Language||343 to 351|
|Chapter I – Language of the Union||343 to 344|
|Chapter II – Regional Languages||345 to 347|
|Chapter III-Language of the Supreme Court, High Courts, and so on||348 to 349|
|Chapter IV-Special Directives||350 to 351|
|XVIII||Emergency Provisions||352 to 360|
|XIX||Miscellaneous||361 to 367|
|XX||Amendment of the Constitution||368|
|XXI||Temporary, Transitional and Special Provisions||369 to 392|
|XXII||Short title, Commencement, Authoritative Text in Hindi and Repeals||393 to 395|