Indian Polity

Salient Features of Constitution (Part 1)

Written by kasadmin

SALIENT FEATURES OF CONSTITUTION

WRITTEN CONSTITUTION

  • A written Constitution is a definite and systematic document defining the nature of polity, the principles that govern the political system and the rights of citizens and governments in a codified form. Unlike British Constitution, India has a written Constitution.
  • It is a result of result of conscious and deliberate efforts of the people and usually framed by a representative body.
  • The Constitution of India was framed by a representative Constituent Assembly and was promulgated on a definite date, i.e., 26th January 1950.
  • In a country with written Constitution, ordinary law is subordinate to Constitution.

LARGEST CONSTITUTION IN THE WORLD

  • Indian Constitution with 395 articles, 22 parts and 12 schedules was the lengthiest known Constitution in the world at the time of its enforcement and it still remains so.
  • United States Constitution has 7 Articles, Australian Constitution has 128 Articles and Canadian Constitution has 147 articles only.
  • Comparing to other written Constitutions, our Constitution is very bulky because of many reasons. Some of them are:
  1. Drawn from various sources: Our Constitution borrowed heavily from many Constitutions in the world. This is why our constitution is also known as ‘bag of borrowings’. By ransacking all the known Constitutions in the world, our Constitution makers wanted to incorporate the wisdom and experience of different countries.

“One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled when the first written Constitution was drafted. It has been followed by many other countries reducing their Constitution to writing….Given these facts, all Constitutions in their main provisions must look similar. The only new thing if there be any, in a Constitution framed so late in the day is the variations made to remove the faults and to accommodate it to the needs of the country.”

Dr. B R Ambedkar

  1. Our Constitution was based on Government of India Act, 1935: Our Constitutions draws heavily from Government of India Act passed by British Government in 1935. With 321 Sections and 10 Schedules, it was the largest law ever passed by British for India. The Constitutional Advisor of Constituent Assembly B.N. Rao made sufficient changes to this Act and submitted before the Drafting Committee for further consideration.
  2. Geographic vastness and regional Diversity: Owing to the geographic vastness and regional diversities, our Constitution has to incorporate many provisions to address problems and issues associated with many regions. Article 370 was added to the Constitution separately for Jammu and Kashmir. Similarly, many special provisions were added for North east states such as Nagaland, Manipur, and Mizoram, Sikkim etc.
  3. Ensuring Social Justice: For ensuring social justice for social and educationally backward people, Constitution has to incorporate many special provisions. For eg., Constitution has Part XVI entirely for matters relating to Scheduled Cates, Tribes and Backward communities.
  4. Detailed administrative provisions: Constitution has detailed provisions for smooth functioning of democracy.
  5. Distribution of Power between Centre and States: Constitution details the manner of distribution of power relating to legislature, administration and financial matters between Centre and States.
  6. Elaborate Chapter on Fundamental Rights: Constitution has a list of Fundamental Rights available to the citizens of India with detailed statements explaining their scope and restrictions allowed to impose on them.
  7. Incorporation of Directive Principles of State Policy: Even though it is non-justiciable, Constitution also includes Directive Principles of State Policy, modeled on ‘Principles of Social Policy’ contained in Irish Constitution.

BLEND OF RIGID AND FLEXIBILITY

  • In United Kingdom, there is no difference between an ordinary law and a Constitutional law. So the Constitution can be amended in the same manner in which ordinary law is amended. This is an example of Flexible Constitution.
  • If there is a written Constitution and is very difficult to amend this Constitution, it is said to have a rigid Constitution. The Constitution of USA is an example for this. Here a Constitutional amendment can only be passed with the majority of 2/3 members of Congress and need to be ratified by 3/4 states. The Constitution of USA has been amended only 27 times so far.
  • But in India, our Constitution is not as flexible as in England and not as rigid as in USA. Rather, it is a blend of both.
  • Some parts of our Constitution can be amended with simple majority. For example, Change of name, boundaries, creation and amalgamation of states, abolition and creation of Upper House in State legislatures, Administration of Scheduled Areas and Scheduled Tribes etc.
  • Some provisions in the Constitution requires special majority. It means a majority of not less than 2/3 of members of each house present and voting and must be a majority of total membership of the house.
  • Some provisions require ratification by more than half of state legislatures.

FEDERAL SYSTEM WITH UNITARY BIAS

  • Constitution establishes a federal system by dividing the territory of the country into various states and power distributed between centre and states.
  • The word Federation is nowhere mentioned in the Constitution. Article 1 says: “India, that is Bharat, shall be a Union of States.”
  • Indian Union is based on the principle of federalism, but Indian federalism is unique in many aspects while comparing to many federal countries in the world, including USA.
  • India follows a polity of combination of federal and unitary systems.
  • Some of the federal and non-federal characteristics enshrined in Constitution are listed below:
Some federal features of Indian Constitution are: Some non-federal features of Indian Constitution are:
  • Two Governments (Centre and States)
  • Division of Power
  • Written Constitution
  • Rigidity of Constitution
  • Bicameralism
  • Independent judiciary
  • Supremacy of the Constitution
  • A strong centre
  • Residuary powers with the center
  • Single citizenship
  • Flexible Constitution
  • Integrated judiciary
  • All India Services
  • Appointment of Governor
  • Emergency Provisions
  • Although federal in structure, it has a unitary bias. It envisages a polity with a strong centre and has powers to transform itself into a unitary state during emergencies.
  • The concept of a Federation with a powerful centre has been borrowed from Canada. In Canada also, residuary powers vests in centre not in states.

ON INDIAN FEDERALISM

  • “Federal in Form, Unitary in spirit”, “Quasi-Federal” – K C Wheare
  • “Bargaining Federalism” – Morris Jones
  • “Cooperative Federalism” – Granville Austin
  • “Federation with a centralizing tendency” – Ivor Jennings

FEDERALISM IN INDIA

  • According to Ambedkar, the term ‘Union of States’ in Article 1 implies two things:

(1) Indian Federation is not the result of an agreement by the states

(2) No state has right to secede from the Federation

  • But in reality the term ‘Union’ does not indicate any particular type of polity. It has been used in the Preamble USA Constitution (which is a Federal system), South American Constitution (which is Unitary), and Constitution of USSR (which even formally allows secession from the Federation).
  • In Indian, Constitution is the supreme organic law and Union and States derives authority from this Constitution.
  • In USA, double citizenship is permitted. That means, a person is a citizen of USA as well as the state he resides. But Indian Constitution allows only Single Citizenship.
  • Indian Constitution envisages a two-government system, with one in Centre and in states. It details the division of administrative and legislative powers and their corresponding jurisdiction over various matters.
  • Union Government can reorganize states and alter their boundaries
  • The Upper House of Parliament, i.e., Rajya Sabha (Council of States) represents interests of States as the members of it are elected by the members of state legislative assemblies.
  • The Seventh Schedule of the Constitution contains three lists such as the Union List, State List, and Concurrent List. Union List consists of subjects on which Parliament has exclusive power to legislate. State List consists of subjects on which state has executive power to legislate. On subjects in the concurrent list, both the central and the state legislatures may legislate.
  • It is noteworthy that Union list has more number of subjects than other two lists and also contains most important and crucial powers.
  • Even on state subjects, the central legislature has power to legislate in national interest.
  • As per Article 249, if the Council of States (Rajya sabha) has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in national interest, Parliament can make laws with respect to any matter enumerated in the State List.
  • In the case of Concurrent lists, if there is any inconsistency between laws made by Parliament and State legislatures on subjects included in the Concurrent list, then Central law prevails (Art. 254)
  • The power to legislate on the subjects not mentioned in these three lists is called residuary power. In USA the residuary powers vest in the States, but in India, it is vested in Union.
  • Centre can assume all powers of States to itself in emergencies. Thus it can become a pure unitary state at certain times. In cases of national emergency under Art 352 and break down of Constitutional machinery under Art. 356, the state autonomy is reduced to nullity.
  • According to Article 256, State should comply with the law made by Parliament and in the case of willful defiance or negligence, Union can issue directions to states regarding this matter. In Article 257, Constitution goes one step ahead and makes some specific provisions, which give a clear supremacy to centre over states. This article calls upon every state to not to impede the executive power of the Union in the state. In the case of con-compliance, Union can issue directs to states.
  • If State Government failed to comply with the directions issued by Union under the provisions of the Constitution, then According to Article 365, the President can hold that Government cannot be carried out in accordance with the provisions of the Constitution.
  • According to Article 356, if the President is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, then he can dismiss the government and assume the powers of states to himself (impose President’s rule in the state).
  • It a nutshell, although Indian states enjoy autonomy envisages by the Constitution, it also set some limitations to this autonomy and it is subordinate to Union in many aspects. That means, India is neither purely federal and nor purely unitary. It is a unique combination of both.

PARLIAMENTARY FORM OF GOVERNMENT

  • The democratic system of government can be divided into the parliamentary and the presidential system based on the relationship between the executive and the legislature.
  • India follows a parliamentary form of government, borrowed from Britain. British Parliamentary system is also known as Westminster model. This term comes from the Palace of Westminster, the seat of the British Parliament.
  • The main reason for choosing Parliamentary system over Presidential system was that people had a long experience of this system under the Government of India Acts.
  • Another reason was that under Presidential System, the executive and legislature are independent of each other and is likely to cause conflict between them.
  • The Features of Parliamentary form of Government in India are:
    • Cabinet Government
    • Responsible Government
    • Presence of nominal and real executives
    • Membership of ministers in legislatures
    • Leadership of Prime Minister
    • Dissolution of Lower House
  • Cabinet is formed by a party or front having majority in the elected House of parliament. Though president is the head of executive, the cabinet exercise the real power over executive.
  • The Prime Minister is the leader of the Council of Ministers. On his advice, the ministers are appointed and dropped. He presides over the meetings of the cabinet. Prime Minister is also known as Keystone of the Cabinet arch. Some refers to him as ‘first among equals’
  • The Council of Ministers is collectively responsible to Lower House of Parliament in Centre and to Legislative Assembly in States.

Ministers are individually responsible to President. It is because Article 75(2) of Indian Constitution states that the Ministers shall hold office during the pleasure of the President.

  • The complete and continuous responsibility of executive to legislature is another important feature of a parliamentary form of government.
  • In a Parliamentary form of government, there two heads, namely, nominal and real. The nominal head is one who, though head of the state, is not head of government. His powers are more apparent than real. Real executive authority is exercised by the Cabinet.

Can President override the advice of Cabinet?

President is the head of the state and his is placed above the parliament as in the Irish Constitution. In Ireland, President can act in his discretion in many issues. But this discretionary power is not available to President of India.

The article 74(1) was amended by 42nd Amendment (1976) during emergency era to make President Constitutionally bound to act in accordance with the advice tendered by the Council of Ministers. Many parts of 42nd Amendment were reverted by the Janata Government by passing 44th Amendment but this part was left untouched. But it empowered the President to refer a matter back to Council for reconsideration. Thereafter, if the Council after reconsideration again sent back the Bill to the President for his assent, the President would have no option but to give his assent.

Difference between India and Britain

Though Indian Parliamentary System is modeled on British system, there are some fundamental differences between them. Indian Parliament is not a sovereign body like British Parliament. In India, Constitution is supreme not Parliament.

Unlike Britain where the head of the state is a monarch, India is a Republic. It means the head of the state is directly or indirectly elected by the people of India.

UNIVERSAL FRANCHISE

  • The concept of popular sovereignty is another feature of the Constitution. It simply means that the people are the rulers of this country.
  • The Preamble of the Constitution states that: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC …. do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”Thus the principle of popular sovereignty in inherent in the Preamble of the Constitution.
  • The franchise is the only effective medium of popular sovereignty in a modern democracy. It won’t be a reality if the voting right is restricted based on various grounds such as gender, property, taxation or education.
  • India adopted adult franchise, meaning granting voting rights for all citizens above a particular age irrespective of their sex, place of birth, religion, caste etc.
  • The electorate of India was 173 million in the first general election held in 1951-52. More than half of the enrolled voters exercised their voting right.
  • Electorate was further widened after reducing voting age from 21 to 18, by 61st Constitution Amendment Act. In 2014 General election, 814.5 million people were eligible to vote.

“The (Constituent) assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule, and in the full belief that the introduction democratic government on the basis of adult-suffrage will promote well being.” – Alladi Krishna Swami Ayyar

COMPROMISE BETWEEN PARLIAMENTARY SUPREMACY AND JUDICIAL REVIEW

  • The power of the courts of a country to examine a law passed by Parliament and to determine whether such actions are consistent with the Constitution.
  • The Constitution of United States envisages a polity with Supreme Court having supreme power with large scope of judicial review. As Chief Justice Hughes once pointed out, “The Constitution (of USA) is what Supreme Court says it is.” It has the power to invalidate any law passed by US Congress based on vague notions. Thus Supreme Court can sit as a court of appeal against legislature.
  • On the other hand, the Parliament is Supreme in Britain. Courts cannot invalidate any law passed by Britain on any ground whatsoever.
  • Parliament of India is not as supreme as Britain and Supreme Court of India is not supreme as in the case of USA. It is the result of synthesis of Parliament Sovereignty and Judicial Supremacy.
  • The Supreme Court, on the one hand, can declare the parliamentary laws as unconstitutional through its power of judicial review. The Parliament on the other hand, can amend the major portion of the Constitution through its constituent power.
  • Indian judiciary can invalidate a law if legislature transgresses the legislative power vested in it by the Constitution or it infringes the fundamental right.

 

About the author

kasadmin

Leave a Comment