CHAPTER 2 – FEATURES OF THE INDIAN CONSTITUTION (FREE)

 

FEATURES OF THE INDIAN CONSTITUTION

 

 

LENGTHIEST WRITTEN CONSTITUTION

 

The constitution of India is the lengthiest written constitution of the world. Originally, it contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules. At present, it has 448 Articles in 25 Parts and 12 Schedules. This is because of the following factors:

  1. Vast spread of India’s geography and its various cultures.
  2. Single constitution for the Centre as well as the states (Except the state of Jammu and Kashmir, which had its own constitution under the provisions of the Article 370, until August 2019 when the Article itself was scrapped).
Part Subject Articles
I The Union and its Territories 1 – 4
II Citizenship 5 – 11
III Fundamental Rights 12 – 35
IV Directive Principles of State Policy 36 – 51
IV-A Fundamental Duties 51A
V The Union Government 52 – 151
  The Union Executive 52 -78
  The Union Legislature 79 – 122
  The Legislative Powers of the President 123
  The Union Judiciary (Supreme Court) 124 – 147
  Comptroller and Auditor-General of India 148 – 151
VI The State Governments 152 – 237
  The State Executive 152 – 167
  The State Legislature 168 – 212
  The Legislative Powers of the Governor 213
  The State Judiciary (High Court) 214 – 232
  Subordinate Courts 233 – 237
VII Deals with Part-B States (Deleted)  NA
VIII The Union Territories 239 – 242
IX The Panchayats 243 – 243(0)
IX-A The Municipalities 243P – 243ZG
IX-B The Cooperative Societies 243ZH – 243ZT
X The Scheduled and Tribal Areas 244 – 244A
XI Centre State Relations 245 -263
XII Finance 264 – 300A
XIII Trade and Commerce within the Territory of India 301 – 307
XIV Services under the Union and the States 308 – 314
XIV-A Tribunals 315 – 323
XV Elections 324 – 329A
XVI Special Provisions relating to certain classes 330 – 342
XVII Official Languages 343 – 351
XVIII Emergency Provisions 352 – 360
XIX Miscellaneous 361 – 367
XX Amendment of the Constitution 368
XXI Temporary and Special Provisions 369 – 392
XXII Others 393 – 395

 

 

FEATURES BORROWED FROM OTHER COUNTRIES

 

Part of the Constitution Borrowed Country From Which Borrowed
Written Constitution USA
Preamble USA
Concept of Republic, Liberty, Equality & Fraternity France
Parliamentary Form of Government United Kingdom
Election Commission United Kingdom
President Election Ireland
Five Year Plan Russia
Single Citizenship United Kingdom
Fundamental Rights USA
Emergency Provisions, including suspension of Fundamental Rights during Emergency Germany
Fundamental Duties Russia
Directive Principles of State Policy Ireland
Federal System & Union-State List Canada
Concurrent List & Joint Sitting of the Two Houses Australia
Supreme Court & Independence of Judiciary USA
Prerogative Writs (These are official orders directing the behavior of another arm of government, such as an agency, official, or other court) United Kingdom

Law governing the Judiciary or the concept of ‘Procedure Established by Law‘. It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. It does not seek whether the laws made by the legislature or the concerned is fair, just and not arbitrary. 

This is opposite to doctrine of ‘Due Process of Law’ that not only checks if there is a law to deprive a person of his life & liberty but also checks if the law made is fair, just and not arbitrary.

Japan
Amendment of the Constitution South Africa

 

 

BLEND OF RIGIDITY AND FLEXIBILITY

 

A rigid constitution is one that requires special majority and procedures for its amendment. A flexible constitution is one that can be amending just like any ordinary law. Article 368 of the Indian Constitution provides for two types of amendments.

  1. Some provisions can be amended by simply getting the special majority of both the houses of the Parliament. By special majority, we mean getting approval of more than two third of the members present and voting, given that more than 50 percent of the total members are present and voting.
  2. Some provisions, in addition to above, require approval (in the form of ratification i.e. passing of law by legislature) from more than 50 percent of the total states.

 

BASIC STRUCTURE DOCTRINE

It states that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these ‘basic features’ are the fundamental rights guaranteed to individuals by the constitution. The basic features of the Constitution have not been explicitly defined by the Constitution, and thus it gives extra power to the Supreme Court to review and strike down any Constitutional Amendments and act enacted by the Parliament, on grounds of attempting to change the basic structure of the Constitution. Two important judgements in this regard have been:

Golak Nath vs State of Punjab (Judgement in 1967): The Supreme Court held that any law or amendment to the constitution is invalid, if it seeks to take away Fundamental Rights of the Citizens of India.

Kesavananda Bharati vs State of Kerala (Judgement in 1973): The Supreme Court held that any law or amendment to the constitution is invalid, if it seeks to change the ‘basic structure’ of the Constitution of India. It mentioned that only those provisions of Fundamental Rights can be altered or amended by the Constitution, which does not seek to change the basic structure of the Constitution.

 

 

FEDERAL SYSTEM WITH UNITARY BIAS

 

The Constitution of India provides for dual governments – one at the Centre and other at the states. Unlike USA, the Indian Union is not the result of agreement between the states for their external affairs, defence and communication, and as such no state has the right to withdraw (secede) from the Indian Union. The Indian Constitution doesn’t allow states to have their own separate constitutions. Although the subjects have been divided into Union List, state List and Concurrent List, the residuary powers have been left to the Union, unlike USA where the residuary powers lie with the states.

Although it provides for a federal system, the Indian Constitution provides for a strong Centre, Single Constitution, Single Citizenship, Integrated Judiciary, appointment of the state Governors by the Centre, All India Services, Emergency Provisions and so on. The unitary bias is aimed to ensure uniform development of the country as a whole. Left alone, the smaller and less resourceful states may lag behind. 

However, some scholars have argued that the unitary bias of our Constitution has increased over the years due to :

  1. overwhelming financial powers of the Union and the utter dependence of the states upon Union grants.
  2. political manipulations, where emergency provisions are increasingly used to push political agendas. 

 

 

PARLIAMENTARY FORM OF GOVERNMENT

 

Also known as ‘Westminster System’, it is a form of government in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government. The government is led by a Prime Minister, assisted by his Council of Ministers, who are elected among themselves by the members of such a party. The other parties serve as the Opposition. In this form of government, the Executive Head is different from the Head of the State. In India, the Executive Head is the Prime Minister, while President is the Head of the State (Here ‘State’ refers to India as a country). The Executive i.e. the Prime Minister and his Council of Ministers, is collectively responsible to the Parliament, and hold its powers only as long as it retains the confidence of the majority of the Parliament’s House of Commons i.e. Lok Sabha. If the vote of no-confidence (which is basically a bill saying that the government does not enjoy the majority support of the House) is defeated in the Legislature (in this case the Parliament), the entire Council of Ministers has to resign. As such, in Parliamentary form of government, both the Executive as well as the Legislature derive their power from the Parliament.

 

IS INDIA READY FOR PRESIDENTIAL FORM OF GOVERNMENT?

This debate has been brought up and discussed whenever there has been a super-majority government. The problem with Parliamentary form of government is that the Executive happens to be from the party that makes laws and hence the segregation between the Executive and the Legislature is not absolute. The Executive can’t blame the Legislature for poor legislation, while the Legislature can’t blame the Executive for poor implementation, because inherently both belong to the same party. The Indian voters chose their parties either for face value of its leaders or for their personal allegiance. Hardly do, they do so on the basis of leaders’ capacity to legislate or on the basis of party manifesto (declaration of what programs and policies a party would bring if bought to power). As such, Indian Parliamentary system has created a unique breed of legislator, largely unqualified to legislate, who seek election only to wield executive power. With regional aspirations on an increase, there has been a rise in the popularity of regional parties too. This has resulted in an era of coalition governments where parties are more focussed on politics than on policy and performance.

There have been talks in intellectual circles that for better governance, India must shift to Presidential form of government, as in USA where the Executive Head, the President, is elected directly by the people, and is not responsible to the legislature. The President in such a system is also the Head of the State, and as such holds the supreme command over the Defence Forces of the nation. The President has a fixed term of office, and elections cannot be triggered by a vote of no-confidence or other parliamentary procedures. The President chooses his team of executives from people outside the legislature or judiciary, based on their individual ability. This brings in an element of efficiency in executing the laws. The Executive, the Legislature and the Judiciary, are completely independent of each other, and so keep a check on each other. Here, the Executive can blame the Legislature for poor legislation, while the Legislature can blame the Executive for poor implementation. The Judiciary can nullify any acts of the Executive or the Legislature that do not go by the existing laws. Hence, this system is more accountable and efficient than the Parliamentary system. A system of directly elected Chief Executives at all levels i.e. Panchayat Chiefs, Town Mayors, Chief Ministers (or Governors) and a national President (in place of Prime Minister), elected for a fixed term of office, invulnerable to the whims of the legislature, and with clearly defined authority in their respective domains, would permit India to deal more efficiently with its critical economic and social challenges. The Council of Ministers would have those who are able and not be limited to those who are elected. At the end of their fixed term, the public would be able to judge them on their individual performance in improving the lives of Indians, rather than on political skill at keeping their party in power.

According to the critics, the Presidential system centralises power in one individual unlike the parliamentary system, where the Prime Minister is the first among equals. This could be dangerous in as diverse country as India which cannot afford to function without consensus-building. A Presidential form of government could lead to a situation where the views of an individual ride over the interests of different segments, and can lead to a potential civil unrest. However, the Emergency of 1977 demonstrated that even a parliamentary system can be distorted to permit autocratic rule. Any politician with aspirations to rule India as directly elected Executive (say President or Chief Minister) will have to win the support of people beyond his or her home turf. He or she will have to reach out to different groups, interests, and minorities, and won’t be able to blame party politics for his or her inaction. 

Changing to Presidential system requires a massive amendment to the ‘basic structure’ of the Constitution. The Supreme Court in Keshavananda Bharati Case has ruled that ‘Basic Structure’ of the Constitution cannot be changed. So unless, the Supreme Court changes its stance, changing to Presidential system is not a possibility. The present parliamentary system has been tried and tested for nearly 70 years. Rather than changing the system, it would be better to first try reforming it.

 

 

INTEGRATED AND INDEPENDENT JUDICIARY

 

The Constitution of India provides for an integrated and independent Judiciary with Supreme Court as the highest court of appeal, guarantor of Fundamental Right, and interpreter as well as guardian of the Constitution.

 

INCREASING POLITICAL INTERFERENCE IN JUDICIARY

However, there have been attempts by various governments, to politicise the Judiciary, the most recent one being 99th Amendment Act (2014) to replace Independent Collegium for selection of High Court and Supreme Court judges with National Judicial Appointment Commission, in which certain members of the selection committee will be nominated by the government. However, the Supreme Court quashed this order in 2015, on account of ‘attempt to change the basic structure of the constitution’.

 

 

A FINE BALANCE BETWEEN PARLIAMENTARY SOVEREIGNTY AND JUDICIAL SUPREMACY

 

The Supreme Court can declare any Parliamentary law as unconstitutional through its power of Judicial Review, if it intends to change the basic structure of the Constitution, or is against the principle of natural justice. Various provisions of Indian Constitution provide for the Judicial Review by giving the Judiciary the power to strike down any action by the Executive or law by the Parliament as unconstitutional on certain grounds. On the other hand, Parliament has the power to amend major portion of the Constitution, as long as it doesn’t change the basic structure of the Constitution and is not against the principle of natural justice.

 

INCREASING IMBALANCE

There have been cases, where the courts have issued laws and executive orders through their judgements.  These include the Vishakha case where guidelines on sexual harassment were issued by the Supreme Court, the order of the Supreme Court directing the Centre to distribute food grains and the appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks. Although done in public interest owing to apathy and inaction of the then governments, such transgression (crossing of boundaries) by the Courts in legislative and executive matters has been widely criticised in intellectual circles. In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgement warned against the ‘temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government’. While there has been some discussion on the issue of activism by the judiciary, it must be noted that there are also instances of the legislature using its law making powers to reverse the outcome of some  judgements. The doctrine of separation of powers is not codified in the Indian constitution.  Indeed, it may be difficult to draw a strict line demarcating the separation.  Hence, it is utmost necessary for each pillar of a nation to evolve a healthy convention that respects the domain of the others.  

 

 

ESTABLISHES CERTAIN INDEPENDENT BODIES

 

The Constitution of India not only provides for Executive, Legislative and Judicial organs of the government but also establishes certain independent bodies at the Central as well as state level to ensure smooth functioning of the democracy. Some of such important bodies are:

  1. Election Commission – to ensure free and fair elections.
  2. Comptroller and Auditor General – to audit the accounts of the government.
  3. Public Service Commissions – to conduct examinations for recruitment to various administrative services.

 

 

SECULAR STATE

 

The Constitution of India doesn’t hold any particular religion as a state religion. The term ‘Secular’ was added to the Indian Constitution by 42nd Amendment Act of 1976. Articles 14-18 prohibit the states from making any discrimination on the basis of religion, caste, race, sex, or place of birth. Articles 25-28 provide for freedom of religion. 

 

 

FUNDAMENTAL RIGHTS AND DUTIES

 

Part III (Articles 12-35) of the Constitution of India enlists Fundamental Rights of the Citizens of India, to protect them from tyranny of Executive as well as Legislative actions. The aggrieved person can directly approach the Supreme Court through relevant writ and get revoked such arbitrary acts of the Executive as well as Legislature, that infringe upon his fundamental rights. In the interest of national security, the fundamental rights guaranteed to the citizens are subject to certain reasonable restrictions.

Part IV-A (Article 51-A) of the Constitution of India enlists 11 Fundamental Duties on part of the Citizens of India, towards the nation. However, unlike Fundamental Rights these are not enforceable in courts.

 

 

DIRECTIVE PRINCIPLES OF STATE POLICY

 

Part IV (Articles 36-51) of the Constitution of India enlist Directive Principles for the Central as well as State Governments. The purpose of these directives is to promote social and economic order in which the citizens can lead a good life. However, unlike Fundamental Rights these are not enforceable in courts.

 

 

UNIVERSAL ADULT FRANCHISE

 

The Constitution of India adopts universal adult franchise as the basis of elections to the Central as well as the State Legislatures. Every citizen who has completed 18 years of age, has the right to vote, without any discrimination on the basis of caste, race, religion, sex, literacy, wealth and any other reason. Earlier the age to exercise adult franchise was 21 years but was changed to 18 years in 1988.

 

 

EMERGENCY PROVISIONS

 

The Constitution of India vests extraordinary powers in the form of emergency provisions in the President of India to meet any unforeseen situations that threaten the security, finances and civil order of the country. During an emergency, the Centre becomes all powerful, and the federal structure turns into a unitary one.

 

 

KEY FACTS

 

  1. The Westminster System is a democratic parliamentary system of government modelled after that of the United Kingdom system, named after the Palace of Westminster, the location of the Parliament of the United Kingdom. 
  2. The US legislature is known as Congress and is bicameral having two houses – House of Representatives (Lower House) and the Senate (Upper House). The members of House of Representatives are elected by people for a two year term, with elections happenings every even year. The members of the Senate are elected for a six year term by their respective states. The President is elected for a four year term, directly by the people. The President, independently, elects his executive team, which has then to be approved by the Senate. Also, the President has the power to veto any legislation by the Congress.