Salient Features of Indian Constitution

Salient Features of Indian Constitution

Some of the major salient features of Indian constitution are as follows:

The Indian Constitution closely follows the British parliamentary model but differs from it in one important respect that, is, the Constitution is supreme, not the Parliament.

So the Indian courts are vested with the authority to adjudicate on the constitutionality of any law passed by parliament.

The present constitution consists of the following:

1. The Preamble.

2. Parts I to XXII covering Articles I to 444

3. Schedules 1 to 12

A Written Constitution:

For a federal State, the Constitution must necessarily be a written constitution that defines the relation between the Central Government and the Regional Governments; demarcates the sphere of each, and is paramount to the constitutions of Regional Governments.

The Indian constitution contains very minute details regarding:

(a) The state- its structure and functions.

(b) The citizens- rights and responsibilities.

(c) Relations amongst the different organs of the state and between the citizens and the state.

Lengthy Document:

The Constitution of India has the distinction of being the most lengthy and detailed constitutional document, the world has produced so far. The original Constitution contained as many as 395 Ar­ticles and 8 schedules.

Democratic Republic:

The Preamble to the Constitution declares that India is a Sovereign Democratic Republic. It has been argued that the word “Democratic” used before the word “Republic” is redundant. But it is not so, for democracy does not involve the existence of a republican form of government.

It may be obtainable under a hereditary monarchy as well, as in the case of Britain. The President of India is indirectly elected by the representatives of the people for a period of five years. The Council of Ministers, which aids and advises the President, is constituted from the party or parties commanding a majority in the Parliament.

The expression ‘Democratic Republic’, therefore, does not only emphasise the elective principle governing the head of the State, but it also provides the means for the realization, by all citizens of India, justice, liberty, equality, and fraternity—the four pillars of democracy.

In other words, the Preamble tries to establish in form as well as in substance, a Government of the people, for the people and by the people. The Constitution establishes a Parliamentary system of government both at the Centre and in the States.

From the British, educated Indians learned the principles of parliamentary democracy and demanded for their own country, similar political institutions as there were Britain.

Provisions of the Constitution and their Source:

Independence of Judiciary:

USA constitution

Judicial review:

USA constitution

President as the Executive head:

USA constitution

President as the supreme commander of the Armed forces:

USA constitution

The vice-president as the ex-officio chairman of the council of states:

USA constitution

Fundamental Rights:

USA constitution

Preamble:

USA constitution

Removal of SC and High court Judges:

USA constitution

Law-Making procedures:

UK constitution

Rule of Law:

UK constitution

System of single citizenship:

UK constitution

Parliamentary System with ministerial responsibility:

UK constitution

Institution of Speaker and his role:

UK constitution

Federation with a strong Centre:

Canadian constitution

Distribution of powers between the Union and the States and:

Canadian constitution placing residuary powers with the centre

7th Schedule 1935 Act:

Canadian Parliament

Procedure regarding the removal of Supreme Court Judges:

Canadian Parliament

Directive Principles:

Irish constitution

Methods of the Election of the President:

Irish constitution

Nomination of Members of the Rajya Sabha by the President:

Irish constitution

Emergency and its effect on Fundamental Rights:

Weimer Constitution of Germany

Specific Words of Preamble:

Australian constitution

The Concurrent List:

Australian constitution

Provision regarding trade commerce and Intercourse:

Australian constitution

Constitutional Amendment:

South African constitution

Fundamental Duties:

U.S.S.R. constitution

Equal Protection of Law:

U.S.S.R. constitution

Planning Commission and Five Years Plans:

U.S.S.R. constitution

Idea of Liberty, Equality and Fraternity:

French constitution

Procedure Established by Law:

Japan constitution

A Federal Polity with a Unitary Bias:

In accordance with the federal set-up there has been a division of powers between the Centre and the States. There are three lists: The Union List, State List and Concurrent List and the residuary powers have been given to the centre.

Legislation on the subjects mentioned in the Central List is the responsibility of the Centre, whereas legislation for the subjects mentioned in the State List is the responsibility of States.

Both the Centre and the States can enact on the subjects mentioned in the Concurrent List, but when the laws passed by the Centre and the State are at variance with each other, Central law will get precedence over the State law and latter will be repugnant to that extent.

India also has a Supreme Court which is the guardian of our Constitution and decides all disputes which might arise between the Centre and the States. The residuary power to make laws on subjects that are not mentioned in any of the lists, like the cyber laws, rest completely with the centre.

But there are also certain peculiar features of our federal system which have made the critics to say that India is over-centralised or that India is quasi-federal. Few have even said that India is unitary in spirit but federal in structure. Unlike other federations, the Union has a right to change the boundaries of the States, divide them or completely end up their existence in the existing territorial form.

The heads of the States i.e. the Governors are appointed by the President and are his agents in the States. They are responsible to him for their acts of omission and commission. The governor can reserve any bill passed in the state, legislative for the assent of the Union that may delay it or lead to a complete veto by the President.

Articles 33 and 34 authorize the parliament to protect persons in service of the union or state with respect to any action taken by them during martial law to maintain or restore order that further strengthens the union’s control over states.

The Centre can, at any time, declare emergency in the States and with that declaration, can take over the administration of that State in its control. Moreover, the country’s financial set-up and structure is such that the States are financially dependent on the Centre.

Single Citizenship:

In a federation there is usually dual citizenship. A citizen belongs to the State in which he is born and also enjoys the citizenship rights of the federation.

This is based on the principle that the states in a federation are of course units, but do not, at the same time, give up their individual identity. But in India there is only one citizenship. Citizens belong to the Indian Union and not to any state.

More Flexible than Rigid:

Another distinctive feature of the Indian Constitution is that it seeks to impart flexibility to a written federal constitution. The amendment of only a few of the provisions of the Constitution requires ratification by the State Legislatures and even then ratification by only 1/2 of them would suffice (while the American Constitution requires ratification by 3/4th of the States).

The rest of the Constitution may be amended by a special majority of the Union Parliament. On the other hand, the Parliament has been given the power to alter or modify many of the provisions of the Constitution by a simple majority as is required for general legislation. The flexibility of our Constitution is illustrated by the fact that since its working, it has been amended 94 times (till July 2009).

Balance between Judicial Supremacy and Parliamentary Sovereignty:

An independent Judiciary with the power of judicial review is a prominent feature of our Constitution. The harmonization which our Constitution has effected between Parliamentary Sovereignty and a written Constitution with a provision for Judicial Review is an important achievement of the framers of our Constitution.

The Indian Constitution adopts the via media between the American system of Judicial Supremacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary with the power to declare a law as unconstitutional if it is beyond the competence of the Legislature as per the distribution of powers provided by the Constitution or if, it is in contravention to the fundamental rights guaranteed by the Constitution.

Further, the major portion of the Constitution is liable to be amended by the Union Parliament by a special majority, if in any case the Judiciary proves to be too obstructive. The balance between Parliamentary Sovereignty and Judicial Review was however seriously disturbed, and a drift towards the former was made by the Constitution (42nd Amendment) Act, 1976.

Universal Adult Franchise:

The introduction of adult suffrage without qualifications of any kind was the boldest step taken by the Constitution-makers and it was an act of faith they had placed in the common man. Article 326 of the Constitution provides that the election to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage.

Every person who is a citizen of India and who is not otherwise disqualified is entitled to be registered as a voter in any such election. Adult suffrage is an acceptance of the fullest implication of democracy.

Secular State:

A multi-religious nation like India has to be a secular state. The word “Secular” was missing in our Constitution till the 42nd Amendment of the Constitution was passed. Secularism in India does not mean an irreligious or an anti-religious state.

It only means: (i) there is no official religion for India and the Parliament has no right of imposing a particular religion as an official religion, (ii) It also means that all citizens, irrespective of their religious beliefs, are to be considered and treated as equal and (iii) no discrimination is to be shown by the State against any person on account of his/her religion either for participation in political affairs or entry into government service or admission into educational institutions.

The Provision of Fundamental Rights:

The fundamental rights consist of the Right to Equality, the Right to Freedom, the Right against Exploitation, the Right to Freedom of Religion, Cultural and Educational Rights, and finally, the most important right, the Right to Constitutional Remedies that makes the enjoyment of other rights real and enforceable.

The rights are negative obligations of the State to not to encroach upon individual liberty and the courts are the guardians of these rights. One of the salient features of Fundamental Rights is that during emergencies, these can be suspended.

Yet another restriction on Fundamental Rights, as provided in the Indian Constitution, is that none of these rights are absolute. Each and every right has got certain restrictions and limitations. Each and every citizen of India is supposed to accept those limitations for enjoyment of these rights.

Directive Principles for a Welfare State:

These are well-prepared guidelines available to the government that can become fundamental for the governance of the country. The objective of the Constitution-makers was to draft a Constitution with social and economic justice accompanied by equality that underlie a welfare state model.

The basic aim of a Welfare State was clearly foreshadowed in the Preamble to the Constitution, and virtually in the Part IV of the constitution containing the Directive Principles of State Policy.

The essence of justice is the attainment of happiness and good for all, as distinguished from the happiness and good of individuals or even for the majority of them. Justice in this sense cannot be secured unless there is a society of equals in status and opportunity.

Equality of status and opportunity are not available unless all sections of the people are equally in a position and circumstances to benefit from the social order that prevails. The Constitution of India not only prohibits discrimination on grounds of birth, sex, religion, caste and creed, but also adequately provides for the promotion of the interests of the Backward Classes and areas.

It seeks to remove all inequalities created by inequalities in the possession of wealth and opportunity, race, gender, caste and religion by providing just and humane conditions of work, maternity relief, leisure and cultural opportunity to every individual, prevention of exploitation in labour and industry, free education for all and the like.

Incorporation of Fundamental Duties:

It was with the passing of Forty-Second Constitutional Amendment Act that a Chp on Fundamental Duties was incorporated in the Constitution with the addition of a new Article (Art. 51 A). The Article provides that every citizen of India has specific Fundamental Duties, that (s) he ought to perform.

Emergency Provisions:

Article 352, 356 and 360 of the Constitution provide the provisions for emergency. According to these provisions when the Head of the State is dissatisfied with the administration of the country or a part thereof, in accordance with the normal procedure laid down in the Constitution, (s)he can declare emergency and take the administration of the country or a part thereof, in his/her own hands.

Declaration of emergency has far-reaching effects. With such a declaration if fundamental rights are abrogated, the court of law can refuse to listen to the 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 State. Besides, during the financial emergency, the financial decisions on the part of the Governments at all levels rest with the head of the state.

Protection of Minorities:

The Constitution has provided for a system of reservation of seats for cultural minorities, in all spheres of life. This is, however, a temporary provision and it has been mentioned in the Constitution that as soon as it is felt that these minorities have come at par with other sections of society, this reservation will cease to exist.

During the pre-independence era, in India, there was a system of reservation of seats for religious minorities. The system proved to be very dangerous and ultimately resulted in the partition of the country. This system has however been completely abandoned and now there is no reservation for religious minorities.

Provision for Autonomous Organisation:

The Constitution includes provision for certain autonomous bodies that have been set up with a view to provide checks on the important organs of the government. An Election Commission has been provided to impartially conduct elections in India. The Constitution has also created an autonomous Supreme Court.

It has been made independent and autonomous primarily because this court is the custodian of our Fundamental Rights and the Constitution. The Constitution has also created an autonomous body, i.e. the Comptroller and Auditor-General of India. Other such Commissions are UPSC and Finance Com­mission.