Constitution of India Outstanding features - Indian Polity and Governance | Polity and Constitution (Prelims) by IAS Masters - UPSC PDF Download

Constitution of India Outstanding features

Indian Constitution was adopted on 26^th November 1949 by the Constituent Assembly. It came into force on 26^th January 1950. It has evolved over the last more than 63 years and is characterised by the following salient features:

Written Constitution

Indian Constitution is a written Constitution. Written constitution is that which is drafted as a result of long process of discussion and deliberation by a representative body elected for this very purpose, for example Constituent Assembly of lndia( 1946-49); the Constituent Assembly of Nepal elected in 2008 with the mandate to draft and adopt a Constitution. An unwritten constitution, as in Britain, evolves from popular conventions, customs and traditions along with the social values and ideals. Israel also has an 'unwritten’ Constitution- that is, there is no body like the Constituent Assembly that drafted it.

Drawn from many sources

The Constituent Assembly, desirous of providing the best features in the Constitution, drew from many sources as shown below

British Constitution

• Parliamentary form of government
• Rule of law'
• Procedure established by Law

United States Constitution

• Charter of Fundamental Rights
• Federal structure of government
• Electoral College to elect the President, though it is substantially different from

the electoral college in India.                                                   .    

• Independence of the judiciary
• Judicial review

Irish Constitution

• Directive principles of state pol icy

• Concurrent List
• Joint sitting of the Parliament

French Constitution

• Ideals of Liberty, Equality and Fraternity Canadian Constitution
• A quasi-federal form of government —a federal system with a strong central government
• The idea of Residuary powers with Centre, in the federal distribution of powers Constitution of the Soviet Union
• Fundamental Duties(Art. 51-A) on the recommendations of Sardar Swaran Singh Committee 1976.

Weimar Constitution

• Emergency Provision - from Weimar Constitution of Germany. Weimar Constitution was the constitution that governed Germany during the Weimar Republic (1919-1933)

It is the most voluminous in the world

Indian Constitution is the lengthiest in the world in terms of the number of articles. Originally, at the time of being adopted, it consisted of 395 articles but after 97 amendments(2013), it presently has about 450 articles. The 97^th Amendment Act related to cooperatives added Art.43B in 2012. These are Articles are serialized into 25 Part. There are 12 Schedules to amplify and support the contents in the Articles. The reasons for the voluminous nature of the Constitution are

• There are detailed provisions for various aspects of administration in order to minimize conflict and confusion.
• Being a democratic country, there is a great need to lay down elaborately the rights of the individuals. There is a chapter onTundamental Rights.
• A federal constitution has to detail the rights and jurisdictions of the centre and states. It is more so in India where much care is taken to spell out in detail the powers of the 'states and centre. The idea is to prevent any constitutional - conflicts and crisis in the working of the Constitution
• Since the Constitution draws from many Constitutions as shown above, it is bound to be lengthy.

• The size and diversity of the country with a pluralist tradition require that Constitution promote the same with detailed provisions. For example, language policy.
• Independent bodies Election Commission, Uniorv Public Service Commission, Comptroller and Auditor General of India have been set up with elaborate provisions for powers,-independence etc which are in other Constitutions not a part of the Constitution but only statutes.

Parliamentary democracy

The Constitution of India adopts Parliamentary system of democracy in order to represent the pluralist tradition and interests of the country. In the parliamentary form , elected members of legislature provide the executive. That is, the Council of Ministers who make up the political executive are necessarily drawn from legislature in order to enforce the highest forms of popular accountability. The Council of Ministers is collectively-responsible to the legislature. Council of Ministers enjoys power till they have support of the popular house, Lok Sabha of India. There are many devices in the Constitution and various statutes and rules with the Parliament holds the executive answerable. As a last resort, no-confidence motion is provided to vote out the council of ministers and either replace it with another party or coalition or have a general election to the Lok Sabha. Parliament has enormous power to make laws and amend the Constitution. But unlike in Britain where the Parliament can make any. laws, in India, Parliamentary power is limited by the following: federalism gives some powers of legislation to Union and some to the states.Judicial review is another limitation. “Basic features” doctrine is one more limitation (Read ahead).

The Constitution contains all the basic features of a federation as shown below

• Sets up a dual polity- the Union Government and the State Governments
• Legislative, administrative and financial powers are divided between the two levels of government. All legislative powers are classified into three lists-the Union List, the State List and the Concurrent List. Subjects of national importance like banking, national security, currency, defence, railways, post and telegraph, foreign affairs, citizenship, etc have been are given to the Union Parliament, being placed in the Union List. Items of provincial and regional importance like police, local self government, agriculture, law and order, health and entertainment have been given to the States, being a part of the State List. Neither can legislate on the other’s List. However, under rare and special circumstances, Union Parliament can legislate on items in the State List. Concurrent List has subjects which are of common interest such as socio economic planning, marriage and divorce, adoption, succession, forests, transfer of property, preventive detention, education, civil and criminal law, etc. The Union Parliament and the State Legislatures enjoy co-equal powers to make laws in. regard to the However, if there is a conflict between a Union law and a State law, the law made by the Union Parliament would prevail over the State law, according to the doctrine af federal supremacy.

• Each level of government being provided with its own sources of revenue
• Supremacy of the written Constitution
• Rigid constitution
• Independent judiciary to settle disputes among the federal units. Supreme Court under Art. 131 has exclusive and original jurisdiction in federal matters

Even while the above listed essential features of federalism are found in the Indian Constitution, there is a strong unitary tilt. For example, states are not 'indestructible’ as in the USA. Union Parliament can not only alter the area and boundaries of a state bht dan also abolish a state. The Parliament has the residuary powers- that is powers that may be left out of the three Lists detailed above. Emergency powers ( Art.352 and 356) of the Union Government also turn the country into a unitary system.

Since 1992, With the making of the 73^rd and 74^th Amendment Acts related to Panchayatraj and Nagarapalika institutions respectively, Indian Constitution has added another tier to the federal system. However, powers and finances of the Panchayats are still left to the discretion of the state governments.

Rigid as well as Flexible

An amendment to the Constitution may become necessary for any reason like national security, social progress, national integration and so on. Thp method to amend the Constitution is rigid in a federal polity- that is a special and elaborate method is prescribed involving both the Union and the States. A flexible constitution is one that can be amended like an ordinary law - states are not involved. Indian Constitution is rigid as far as amendment to the federal features are concerned. It is flexible for all other features, that is a special majority in the Parliament is enough for the Amendment Bill to be passed. Jawaharlal Nehru, while justifying this nature of the Constitution, said, "Our Constitution is to be as solid and permanent as we can make it, yet there is no permanence in a constitution. There should be a certain amount of flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living vital organic people." 97 amendments have been made so far (2012)

Welfare State

At the time of Independence India was an impoverished country. There was large scale poverty and deprivation. Historically inherited social divisions marked the society. Since markets were not well developed arid many were outside the economic system, Government took upon itself the responsibility to provide welfare to the vast majority of vulnerable people. Constitution has many features that commit the country to a welfare State. The Preamble to the Constitution was amended in 1976 (Forty-second Amendment Act, 1976) to insert the goal of socialism. Directive Principles of State Policy (Part IV) aim at the establishment of a Welfare State in India. Progressive taxation, developmental interventions like the various flagship programmes of the governrnent (MNREGS), nationalization of banks in 1969 and 1980, land reforms and various subsidies are meant to establish a welfare state. Affirmative action (positive discrimination) by the Governmsnt in favour of the socially marginal ised like dalits is an jmportant aspect of the welfare state.

Fundamental Rights

As a hallrflark of the democracy that the Constitution establishes, Fundamental Rights are provided in Part 111 to citizens (Art. 15,16,19,29 and 30) and others. They are fundamental to the development of the individual and the society and so they are called Fundamental Rights. They are given extraordinary protection with the Supreme Court being made directly accessible under Art.32 and High Courts under Art.226 to issue writs to restore the Fundamental Rights in case they are violated.

The Fundamental Rights of India conferred by the Constitution are broadly classified under the following groups:

• The Right to Equality;
• The Right to Freedom;
• The Right against Exploitation;
• The Right to Freedom of Religion;
• Cultural and Educational Rights; and
• The Right to Constitutional Remedies.

The Right to Property was deleted as a Fundamental Rights by the Forty-fourth Constitution Amendment Act, 1978 and is made into an ordinary Constitution right ( Art.300A).

Directive Principles of State Policy

Borrowed from the Irish Constitution, Directive Principles of State Policy constitute a distinctive feature of Indian Constitution. DPSPs are a set of social and economic obligations imposed on the Government- Union and State- to establish a welfare society. They are not justiciable (non-implementation of the DPSPs cannot be challenged in courts) but are fundamental to the governance of the country (Art.37). Democratic decentralization through local self government, equitable distribution of wealth, welfare of workers, uniform civil code, improvement in the/health standards of the people , commitment to contribute to international peace are some of the obligations that the DPSPs sets for the Government. Many amendments to the Constitution as well as landmark judgements of the Supreme Court have contributed to the implementation of the Directive Principles. For example, 86^th Amendment Acts 2002- RTE. National Urban Health Missioned 13). Food Security Bill that was introduced in the Parliament in December 2011. Indexing the MGNREGA wages to CPl(AL) in 2012.

Secular Polity

A natural corollary of a pluralist and democratic Constitution is secularism which has the following meaning

• State has no official religion
• State and religion are separated
• State has an equi-distant policy towards all religions
• All individuals have the right to pursue the religion of their choice

Additionally, in India minorities- both religious and linguistic- are given special protection (Art.29 and 30) so as to preserve the diversity within unity.

Unified, hierarchical and Independent judiciart

Indian Constitution provides for a single integrated judiciary headed by the Supreme Court. Each state, or a group of them, has a High Court with administrative control over the subordinate judiciary (district and below) . It is unlike in the USA where there are two sets of courts- one for each state and one for federal laws and matters. In India, Supreme Court can be approached to challenge any verdict of the High Court and other courts. Such a system plays an important integrating role and maintains the unity of the country. Thus, it is said that the Supremete Court has a ’unifying effect’ on the country.

The Constitution contains many provisions for an independent and impartial judiciary. For example, the judges of the Supreme Court and the State High Courts have security of service. Independence of judiciary ensures that there is no pressure on the judiciary to be biased. The judges can be objective and impartial

Judicial review

The laws made and enforced are reviewed by the judiciary for their legality and constitutionality. It protects the Constitution; prevents abuse of law; and empowers citizens. In the last more than 3 decades, review powers have assumed activist dimensions expanding the scope of citizen rights.

Universal Adult Franchise

The Constitution provides for Universal Adult Franchise. The citizens of India who are 18 years of age and above have been granted the right to vote irrespective of any qualification pertaining to education, possession of property or payment of income tax. To bring the Scheduled Castes and Tribes at par with the other communities of the country, some seats have been reserved for them in the Union Parliament, State Legislatures and local bodies in accordance with their population. There are reserved parliamentary and assembly constituencies from where only the members of the Scheduled Castes or Tribes can contest elections. Rajya Sabha in 2010 passed Constitution Amendment 108^th ) Bill to give reservation to women in the popular Houses of Union and State legislatures. Representation of People's Act was amended by the Parliament in 2010 to allow voting rights for Non-Resident Indians (NRls)

Basic Features

Since 1973, as a result of the Keshavananda Bharati case verdict of the Supreme Court, the doctrine of basic features was introduced into India’s Constitutional jurisprudence under which certain features of the Constitution may be pronounced 'basic’ by the apex court and kept out of the reach of Parliament’s amendment power which is found in Art.368.

PREAMLE

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty^sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Constitution (42^nd Amendment) Act 1976 introduced three words - socialist, secular and integrity- into the Preamble. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted.

Preamble contains the essence of the Constitution- its values and goals. It is a microcosm of the Constitution and has the following significance

• It categorically says that people of the country are sovereign
• it has many of the 'basic features’ of the Constitution
• if there is any lack of clarity in the Constitution, the judiciary turns to the Preamble in its interpretation of the relevant provisions

The Supreme Court, in the Berubari case (1960) ruled that Preamble is not a part of the Constitution but in the Keshavananda Bharati case in 1973 reversed its earlier verdict and ruled that Preamble is a part of the Constitution. Though it is not counted as a Part, it is an organic part of the Constitution.(Remember Part 1 of the Constitution is Union and its Territory) Preamble is not enforceable. However, the Preambular values are found in many Parliamentary and state laws and if they are violated, punishment is meted out. For example, laws related to secularism, elections , social justice and so on.

According to the Supreme Court, In the Keshavananda Bharati case 1993, Preamble cannot be amended. Amendment, when it means abridgement, is not allowed. That is, Preamble can be enriched but not restricted.

Preambular values

Sovereignty

Sovereignty is a characteristic of governments of all independent countries. It means that there is no authority above the government either outside or inside the country. Government itself is the choice of the people expressed through periodical elections, in democratic countries. Even if a country were not democratic, its sovereignty is undeniable. Sovereignty is the modern notion of supreme political authority within a territory. According to the Preamble of the Constitution, people of India are sovereign. That is, Preamble establishes popular sovereignty which means that no law or rule is legitimate unless it rests directly or indirectly on the consent of the people. All modem democracies are based on popular sovereignty. According to some constitutional experts, the word 'people’ in the Preamble means representatives of the people in the Parliament and thus implies parliamentary sovereignty in an indirect democracy like ours. However, Indian parliament is not sovereign as ours is a federal country where the powers of Parliament are restricted and shared with the states. Indian parliament is not sovereign also for the reason that the laws it makes are subject to judicial review. Whether the laws made by the Parliament are constitutionally compatible or not is ruled by the judiciary.

Supreme Court , by virtue of its powers to uphold the Constitution, imposed limitations on the powers of the Parliament to amend the Constitution in the form of 'basic features’ ( Keshavananda Bharati case 1973) in which the Court held that Parliament could amend any part of the Indian Constitution except the 'basic features’. Thus, Indian Parliament is not sovereign but has enormous powers.

Socialism

The word socialist ‘was added to the Preamble by the 42^nd Amendment Act in 1976. Socialism means ownership of productive forces by the Government so that they benefit people equitably. Private ownership can deepen inequalities and create and perpetuate divisions. Public ownership and control can reduce the disparities and ensure equitable enjoyment of resources. That is, disparities in socialist society are not as steep as they are in market societies. Distributive justice is a part of the socialist societies.

Since 1991, there is a new direction to Indian economic system towards greater role for markets in economic development and retreat of state. It has triggered a debate as to whether the Constitutional goal of socialism is being implemented or not. However, the basis for the new economic policy centered around liberalization of economy is to generate wealth which in turn can be distributed to all sections. Markets have proven their value as wealth generators. Government continues to play an active role in social security and distributive justice. There is a campaign for compassionate capitalism in the wake of the global economic turmoil since 2009.

Thus, while India continues to strive for the Preambular value of socialism, the method of achieving the goal is modified towards market forces playing a greater role in the economy.

In 2010, Supreme Court dismissed a petition filed by an NGO arguing for the removal of the word 'socialist' from the Constitution's Preamble. The challenege under PIL comes from the fact that Section 29A(s) of the Representation of People Act, 1951 requires that each political party have a memorandum of association. This memorandum must include a specific provision that the 'body shall bear true faith... to the principles of socialism, secularism and democracy'. Without this, a body cannot be, recognised as a political party.Otherwise, the Election Commission can derecognize the party⁷.

The Court's reasoning was that since no political party has objected to it, and that the Election Commission has not yet had an occasion to derecognise a party that refuses to reaffirm its commitment to 'socialism', there really is no cause, other than the academic' importance of the question, that merits the hearing of this case.

In 2013, A PIL in the Bombay high court sought an interpretation of the term socialist as used in the preamble to the Constitution of India. The PIL does not challenge the government's policy as being unconstitutional, but wants the HC to put to test the relevance of the term socialist in the Constitution given the various policy decisions of the government that are contrary to it, particularly since the liberalization of economy began in 1991.

The PIL pointed to debates of the Constituent Assembly where Dr B R-Ambedkar himself in 1948 said: "What should be the policy of the State, how the Society⁷ should be organized in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether." But in 1976 by the 42nd amendment the word "socialist' was added making the preamble read "...to constitute Indian into a sovereign socialist secular democratic republic."

In simple terms, socialism according to the Constitution, though undefined, means the egalitarian measures related to social and economic justice detailed in the Chapters on FRs and DPSPs.

Secularism

Secularism means separation of religion from politics. Religion is private while politics is public. That is one explanation. Another perspective is that if religion and politics are mixed, it may create social tensions and disturb democracy.

Also, in a multi-religious society like India, democracy necessarily means secularism: pluralism being the essence of democracy , all religions should be given equal right to exist. Secularism means equidistance of the State towards all religions- State should not show discrimination either positive or negative towards any one religion. All individuals have the right to follow religion of their choice while respecting the same right of others.

Democracy means rule by people. Effectively, it is the adult population which constitutes- the electorate- based on universal adult franchise- that is the foundation for democracy. Periodical elections are held to constitute parliament to govern the country. Democracy is pluralism. Plurality of opinions, parties, ideologies, languages, religions and cultures coexist and flourish without any discrimination. Other important features of democracy are rule of law, independent judiciary, and individual rights and so on.

Republic

Republic is a political order in which the supreme power lies in a body of citizens. Will of people is the basis for governance. Public offices are thrown open to al l citizens .It also means a country where the Head of State is elected and is not a hereditary institution like the monarchy in Britain. Republican values, like democratic values are aimed at empowering the citizen.

Justice

Justice is a concept involving the fair and moral treatment of all persons, both in' the formulation and enforcement of law. It is often seen as the effort to define and do what is "right." It involves reward for doing right and punishment for deviating from it. Preamble speaks of social, political and economic justice. Social justice means the whole society should progress without some sections falling behind and exploited. It is inclusive growth .Equal treatment for all people independent of gender, caste, religion, language or any form of ethnicity is a part of social justice. Social protection programmes are initiated by the Government and corporate agencies and NGOs to ensure that the weak and impoverished are uplifted and, at any rate, are not allowed to become weaker.

Similarly, economic justice means ensuring that growth benefits all by alleviating poverty and generating jobs. If growth does not positively impact on all, the government takes up distributive justice programmes in to supply essential goods at affordable prices and so on.

Political justice means all citizens are given the right to vote and stand for political office except those who are not adults or below the age prescribed for the office and are not mentally sound or barred for violation of law.

Liberty

Liberty is derived from the Latin word ‘liber’, which means freedom, from slavery, imprisonment etc. It was one of the goals of the French revolution along with equality and fraternity. It is the essence of democracy. Liberties are always associated with reasonable restrictions. Liberty of thought, belief, faith and expression are essential to the development of the individual and the society.