Man’s long struggle has been to live under a government of laws, not of men. Equal justice under the law has for long been his cherished ideal, a system under which the new law is applicable to all alike. Man has in all ages been striving to escape the regime that dispenses justice according to the political or religious ideology of the litigant or the whim or caprice of those who run the government. As a consequence of this struggle, there was an established principle of abiding value, that no judiciary can be impartial unless it is independent. In fact, the judicial process ceases to be judicial the moment those who seek to judge cease to be independent of every form of external influence. Hence the importance of judicial independence.
The framers of our Constitution preferred a parliamentary system of government. Our infant democracy could ill-afford any confrontation between the executive and the legislature if they were separate and independent of each other. The President of India is the constitutional head of the Union Executive, but he exercises the executive power, vested in him, in accordance with the advice of the Union Council of Ministers. The real executive power thus vests with the Council of Ministers with the Prime Minister as the head. The Council of Ministers is collectively responsible to the Lok Sabha. The same is true of the relationship between the Governors and the Council of Ministers in the States.
The parliamentary system of government both at the Centre and in the State is based on adult suffrage whereby all citizens of India who are not less than 18 years of age and not otherwise disqualified by the Constitution or any law, have the right to vote. It is a bold political experiment in view of the vastness of the country, its large population, poverty and illiteracy.
Federal And Unitary Features
The word ‘federation’ has not been used anywhere in the Constitution. In fact, India has been described as a Union of States. The provinces and the princely States were not sovereign entities before they joined the federation. The states are not ‘inviolable’ or ‘indestructible’ as in the USA. Parliament can by law change or alter the areas and boundaries of any State. No state has the right to secede from the Union.
But, it has some basic federal features. India has two governments functioning at the national and state levels with a clear cut distribution of powers. Both the State and the Union Government draw their authority from the Constitution. The supremacy of the Republic lies not with either the Union Government or the State Governments but with the Constitution. To uphold the legal supremacy of the Constitution, the power to interpret the constitution has been vested in the judiciary. Thus the Indian Constitution has four federal features: (a) clear division of powers between the two governments; (b) dual system of government; (c) supremacy of the Constitution; and (d) authority of the judiciary to interpret the constitution.
All the constituent States of the Union are not equal. The Union Territory do not enjoy the same status as the States. Unlike the American Constitution, the Indian Constitution does not provide for any safeguards for the protection of the rights of States. Except for Jammu & Kashmir, no state has its own Constitution as in the U.S. Whereas the consent of the States is vital for an amendment of the American Constitution, the consent of the States in India is necessary only in regard to a few specific matters.
There are some features in our Constitution unlike the U.S.:
Also, the constitutional schemes of distribution of legislative, administrative and financial powers between the Union and the States have a strong unitary bias, unlike the US where the Federal Government has gained more powers through the interpretation of its Supreme Court.
Lengthy And Legalistic Document
It is the most lengthy and legalistic constitutional document any country has so far adopted. One reason is that the Constitution has drawn from a variety of sources. The other is that the constitution-makers ensured that no element of uncertainty was left. It codifies in detail the relationship between the Union and the States and the State’s interests and contains both justiciable and non-justiciable rights as well as fundamental duties. As the Constitution is not only a legal document but an instrument of social change, it has to be a detailed document in order to ensure that it stands the test of any situation in future. Also, care has been taken to ensure that the Constitution is not subverted or perverted by any future government. There are numerous in-built constitutional safeguards.
There are temporary, transitional and special provisions for the state of Jammu and Kashmir and it also takes care of the regional problems in States like Gujarat, Maharashtra, Andhra Pradesh, Sikkim, Assam, Nagaland and Manipur. The legalistic nature of the Constitution is also partly because of heavy borrowings from the Government of India Act of 1935.
Flexibility Of The Constitution
Some eminent lawmakers are of the view that the constitution is rigid. But, we know that it has been possible to amend the constitution over a hundred times. Our constitution is more flexible than the American constitution, which requires ratification of amendments by three-fourths of the States. In our constitution only amending of a few provisions requires ratification of amendments by three-fourths of the states. In our constitution only amending of a few provisions requires ratification by half of the State Legislatures. While most of the provisions of the Constitution can be amended by a two-thirds majority of each of the Houses of Parliament and many of the provisions can be altered or modified by a simple majority. Also, the constitution can be supplemented by simple legislation like the Citizenship Act, National Security Act, the Untouchability Act etc.
Moreover, the scope for the growth of conventions to supplement the constitution makes it more flexible. Conventions govern the privileges and rights of the legislature, the functioning of the cabinet system, the status of the Cabinet Secretariate, etc.
In a federation, there is usually double citizenship. A citizen belongs to the State in which he is born and also enjoys the citizenship rights of the Federation, to which his state has joined as a unit. This is on the basic principle that the states in a federation are of course units, but do not at the same time, give up their individual entity. But in India, there is single citizenship. Citizens belong to the Indian Union and not to any state.
Provision for single citizenship for the whole of India was perhaps intentional. The constitution fathers did not like that regionalism and other disintegrating tendencies which had already raised their ugly heads and were endangering the very security and integrity of the country, should be further encouraged by providing double citizenship. Provision for double citizenship would have naturally stood on the way of emotional and national integration. The people in the State would have thought more in terms of the State than the country as a whole. Single citizenship has undoubtedly forged a sense of unity among the people of India and the image of United India is reflected by this provision.
One of the unique features of the Constitution of India is the way in which situations will be dealt with during an emergency. According to emergency provisions when the head of the State is satisfied that it is impossible to run the administration of the country or a part thereof, in accordance with the normal procedure laid down in the Constitution he can declare an emergency and take administration of the country or part thereof in his own hands. This emergency can be financial or political. Declaration of emergency has far-reaching effects and its consequences are that with such a declaration fundamental rights are suspended and the courts of law can refuse to entertain petitions for the enforcement of these rights. Federal set up of the country practically turns out to be a unitary one and no bill can be introduced in the legislature without prior permission of the head of the states. The President or Governor is the exclusive authority to decide as to whether there are need and necessity of declaration of such an emergency. In India emergency was declared in 1962, when China invaded India. It was again declared in 1965 and 1971 when Pakistan invaded the country. In 1975, an internal emergency was declared in the country, as a result of which censorship of the press was imposed. During this period Forty Second Constitution Amendment Act was passed which introduced far-reaching changes in the Constitution. This emergency was lifted only in 1977.
Provisions in the Constitution dealing with declaration of emergency were amended by Constitution Forty-Fourth Amendment Act by which it was ensured that in future it became difficult for any Prime Minister to declare an internal emergency. On several occasions, the President of India has taken over the administration of states on the plea that there is constitutional break down and administration of the state cannot be run in accordance with the provisions of the constitution. Over the years the salient features of the Indian Constitution have developed clear contours. The federal features of the Constitution have been weakened because certain centralising influence has become more and more compulsive. The Parliamentary executive has become increasingly assertive because one party has dominated the Indian political scene until now with a brief interlude. The chapter on Fundamental Rights has undergone a radical change with the deletion of the “Right to Property”. The role of the judiciary, too, is undergoing changes because of the growing radicalism and needs of social justice. And the Directive Principles, although not justiciable, have almost become as important as the Fundamental Rights. A good number of transitional provisions have been dropped. Finally, the conventions that the country has been evolving are also changing the temper of the constitution. Since all these changes have occurred in less than 50 years, it shows that even an elaborate and complex constitution necessarily calls for changes and adjustments.
Philosophy of Constitution
On January 22, 1947, the Constituent Assembly adopted the Objectives Resolution drafted by Jawaharlal Nehru. The Objectives Resolution contained the fundamental propositions of the Constitution and set forth the political ideas that should guide its deliberations. The main principles of the resolution were :
The philosophical of a Constitutions consists of the ideals for which the constitution stands and the policies which the Constitution enjoins upon the rulers of the Community to follow. The Constitution of India reflects the impact of our ideology in the following spheres:
(i) Secularism: Secularism is the hallmark of the Indian Constitution. People professing different religions have the freedom of religious worship of their own choice. All the religions have been treated alike. The fact appreciated in India was that all religions love humanity and uphold the truth. All the social reformers and political leaders of modern Indian have advocated religious tolerance, religious freedom and equal respect for all the religions. This very principle has been adopted in the Constitution of India where all religions enjoy equal respect. However, the word ‘secularism’ was nowhere mentioned in the Constitution as adopted in 1949. The word ‘secularism’ has now been added to the Preamble to the Constitution through the 42nd Amendment passed in 1976.
(ii) Democracy: We have borrowed the modern form of democracy from the West. Under this system, democracy means the periodic responsibilities of the Government to go to the people. For this purpose; elections have been held every five-year to elect a Government by the people. However, democracy covers even the economic and social aspects of life. This aspect of democracy is well-reflected in the Directive Principles of State Policy. They are aimed at human welfare, co-operation, international brotherhood and so on.
(iii) Sarvodaya: Sarvodaya refers to the welfare of all. It is different from the welfare of the majority. It seeks to achieve the welfare of all without exception. It is referred to as Ram Rajya. The concept of Sarvodaya was developed by Mahatma Gandhi Acharya Vinoba Bhave and J. Narayan under which the material, spiritual, moral and mental development of everyone is sought to be achieved. The Preamble to the Indian Constitution and the Directive Principles of State Policy represent this ideal.
(iv) Socialism: Socialism is not new to India. Vedanta philosophy has socialism in it. The national struggle for freedom had this aim also in view. Jawaharlal Nehru referred to himself as a socialist and republican. Almost all the parties in India profess to promote democratic socialism. These principles are included in the Directive Principles of State Policy. However, to lay emphasis on this aspect, the word ‘socialism’ was specifically added to the Preamble to the Constitution through the 42nd Amendment.
(v) Humanism: Humanism is a salient feature of Indian ideology. Indian ideology regards the whole of humanity as one big family. It believes in resolving international disputes through mutual negotiations. This is what we find in the Directive Principles of State Policy.
(vi) Decentralization: Decentralization is another aspect of Sarvodaya. Indian has always practised decentralization through the Panchayat system. Mahatma Gandhi also advocated decentralization. It is on this account that he is regarded as a philosophical anarchist. We have introduced the Panchayati Raj system in India to achieve the objective of decentralisation. The concept of cottage industries as laid down in the Directive Principles of State Policy also refers to decentralization.
(vii) Liberalism: Liberalism does not refer to the Western concept of liberalism. It refers, in the Indian context, to self-government, secularism, nationalism, economic reforms, constitutional approach, representative institutions etc. all these concepts were advocated by the modern Indian leaders.
(viii) Mixed Economy: Co-existence is a salient feature of our ideology. Co-existence has manifested itself through a mixed system of economy. In this system, we have allowed both the private and public sectors of the economy to work simultaneously. Large scale and essential industries have been put in the public sector.
(ix) Gandhism: Gandhism represents an ethical and moral India. Gandhi set a new example of fighting foreign rule through non-violence. He taught the importance of non-violence and truth. He advocated untouchability, cottage industry, prohibition, adult education and the uplift of villages. He wanted a society free of exploitation and decentralized in character. All these Gandhian principles have found an honourable place in the Constitution of India.