Indian Constitution – Salient Features

INTRODUCTION #

The salient features of the Indian constitution are of two types. There are some features that are unique to this Constitution; no previous constitution pos- sessed them. While there are others which, though not peculiar, represents its important characteristics.

UNIQUE FEATURES #

• Framed by the People of India: This Constitution has been framed by the repre- sentatives of the people of India through a Constituent Assembly during 1946-1949. Prior to it, the British Parliament tried to frame the constitutions. The Constituent Assembly, however was elected indirectly by the Provincial Legislative Assemblies that were themselves elected on the basis restricted franchise. The representatives of the princely states were the nominees of their rulers. In spite of it, the Constituent Assembly could be called a representative body because the then ruling party at the Centre had decided to give representation to all sections of society as well as to all shades of opinion
• Derived fromVarious Sources: It is a unique document that was derived from various sources. Our constitution mak- ers were inspired to draft the provisions regarding Fundamental Rights and an in- dependent judicial system of the USA, Directive Principles of State Policy of Ire- land, Emergency provision of Germany, Distribution of legislative powers of Can-

ada, and Parliamentary Institutions of the United Kingdom. Besides, they borrowed extensively from the Government of India Act, 1935.

Country                  Constitutional provisions borrowed

Government of  Federal scheme, Declaration of emergency India Act 1935    powers, Ordinance making power of Pres-

ident and Governor, Office of Governor, Power of federal Judiciary, and Administra- tive structure both at Centre and State level

U.K. (England)   Parliamentary System, Bicameral legisla-

tive, Prime Minister, Council of Ministers, Single Citizenship, Office of CAG; Writ jurisdiction of courts, Rule of law

USA                        Written Constitution, Fundamental Rights, Supreme Court, President as Executive Head of State, Vice President as Chairman of Council of States, and Judicial Review

Australia                  Concurrent List, Cooperative federalism,

and Centre-State Relationship Erstwhile USSR  Fundamental Duties.

Germany (Weimer Provisions concerning suspension of Constitution)                               Fundamental Rights during Emergency

and Ballot system

Canada                    Federal System and Residuary Powers South Africa     Procedure of Constitutional Amendment

and Electing members to Rajya Sabha

Ireland                     Concept of Directive Principles of State Policy, Nomination of members to Rajya Sabha by President, and Method of Pres- idential election.

• Sovereign, Socialist, Secular, Democratic, Republican nature of the State: According to the Preamble, India is a Sovereign So- cialist Secular Democratic Republic. The word ‘Sovereign’ emphasises that India is no more dependent on outside author- ity. The term “Socialist” has been insert- ed in the Preamble by the Constitution 42nd Amendment Act, 1976. In general, it means some form of ownership of the means of production and distribution by the State. India has chosen mixed econo- my and now is drifting towards privatisa- tion.

The term ‘Secularism’ means no religion is recognised as the religion of the State. It treats all religions equally. In ‘a secular State’ the State regulates the relation be- tween man and man. It is not concerned with the relation of man with God. The term “democratic” indicates that the Con- stitution has established a form of govern- ment which gets authority from the will of the people. The rulers are elected by the people. Justice, Liberty, Equality and Fra- ternity are the essential features of a de- mocracy. The term Republic signifies that there shall be an elected head of the State who will be the Chief Executive Head. The President of India, unlike the British King or Queen, is not a hereditary monarch but an elected person chosen for a limited peri- od. It is an essential ingredient of a Repub- lic.

• Fundamental Rights and Duties: The Constitution guarantees for Fundamen- tal Rights and Fundamental Duties to the citizens of India. No previous constitution provided for them. The leaders of the Indi- an National Movement always demanded for the inclusion of Fundamental Rights in the Constitution of India. The Constitution initially did not provide for Fundamen- tal Duties. This provision was inserted in the Constitution through the Constitution (Forty Second Amendment) Act 1976.
• Directive Principles of State Policy: The Constitution provides for the Directive

Principles of State Policy. No previous constitution had such a provision. Though the Instrument of instructions attached to the Government of India Act 1935 appears to be analogous to the Directives, the aims and objectives of the two are very differ- ent. It is to be noted that the leaders of the Indian National Movement had made var- ious promises regarding the Fundamental Rights that the citizens of free India will enjoy. But when India got independence in 1947, the leaders realised that they did not possess sufficient means to grant those rights, particularly economic and social rights, immediately. But at the same time they did not want to go back upon their promises. They therefore, decided to put the Rights into two categories: (i) those that were granted immediately and (ii) those that would be granted in future if and when they were capable to do so. The first were included in Chapter III entitled Fundamental Rights and the second were included in Chapter IV entitled Directive Principles of State Policy. The rights in- cluded in Chapter IV are non-enforceable through courts of law but they are the fun- damental principles of governance which ‘the State’ (i.e. the Government and Parlia- ment of India the Government and the Leg- islature of each of the States and all local or other authorities within the territory of India or under the control of Government of India) is required to take cognizance of it.

• Judicial Review: The Constitution pro- vides for the judicial review of the Acts of Legislatures (of both, the Union and States) as well as of the activities of the executives (Union and State). Prior to it there was no such provision. This provision keeps the legislative and the executive branches of governments under restraint and they can- not exercise their authority arbitrarily.
• Universal Adult Franchise: The consti- tution of India provides for the universal adult franchise. Prior to it all the consti- tutions provided for restricted franchise.

According to the Government of India Act of 1935, which granted the largest amount of franchise, only 14% of the people had a right to vote. It is noteworthy that most of the western democracies had taken a num- ber of decades to grant such a right to their citizens. It was really a very revolutionary step taken by the Constituent Assembly to grant universal adult franchise by a stroke of pen.

• Blend of Rigidity and Flexibility: The Constitution provides for an amending procedure. Prior to it, there was no pro- vision for an amendment of the prevalent constitution. The British Parliament alone was entitled to do it. The procedure for an amendment is a unique blend of rigidi- ty and flexibility. Some provisions of the Constitution can be amended by simple majority of the two Houses of Parliament, though technically they are not treated as amendments in the constitution. Oth- er provisions require absolute majority of the total strength of the two Houses of Parliament and two-thirds majority of the members present and voting and still some provisions require an additional support by half of the States’ legislatures. For in- stance, a change in the name or territory of a State can be made through an ordinary law enacted by the two Houses of Parlia- ment; whenever there is a change proposed in the federal character of the Constitution, absolute majority of the total strength of the two Houses of Parliament and two- thirds majority of the members present and voting and also ratification by at least half the State Legislatures is required; in all other matters a resolution passed by an absolute majority of the two Houses, the members present and voting is sufficient for any change in the Constitution .

A COMPREHENSIVE DOCUMENT #

The Constitution of India is the longest written constitution. It originally contained a Preamble, 395 Articles in 22 Parts, 8 Schedules and 5 Appendix. (At present it contains 465 articles in 25 parts, 12

schedules, 14 appendix and 99 amendments (out of 120 Constitution Amendment Bills). Constitution of

U.S.A. contains just 7 Articles, contains Canadian constitution 47 Articles and Australian constitution contains 128 Articles.

It is a document of fundamental laws that define the nature of the political system and the structure and functioning of organs of the government. As the framers wanted to remove difficulties during the working of the Constitution, they incorporated several details to avoid loopholes and defects.

The following factors have contributed to the bulk of the Constitution:

1. The founding fathers of the Constitution had before them the accumulated experience from the working of all the known Constitutions of the world, and were aware of the difficulties faced in the working of those Constitutions. Thus a number of provisions have been in- cluded to avoid some of the difficulties which were experienced in the working of the other Constitutions.
   1. It lay downs the structure not only of the Cen- tral-Government but also of the States, while Australian and American Constitutions left the aspect of drafting the provisions of gov- ernmental machinery to the States.
   1. The vastness of the country and the peculiar problems relating to language, scheduled castes and tribes and minorities have contrib- uted to the bulk of the Constitution.
   1. Apart from laying down just the fundamental principles of governance as many of the Con- stitutions do, the Indian Constitution provides matters of administrative detail.
   1. More than half of it is based on the Govern- ment of India Act, 1935 which itself was a bulky document.
   1. It also contains detailed provisions relating to Centre-State relations including the emergen- cy provisions.
   1. The special status given to Jammu & Kashmir and other States such as Nagaland, Mizoram, Assam, Gujarat etc.
   1. The task of reconciling the Parliamentary form of Government as taken from UK and

the concept of Judicial Review as borrowed from the USA made our constitution a bulky constitution.

FEDERAL STRUCTURE OF GOVERN- MENT #

A federal state is a state where a country is divided into smaller regions and the government is functioning at two levels. The Indian Constitution has envisaged a federal structure for India consid- ering the geographical vastness and the diversity of languages, region, religions, castes, etc. Written Constitution, Supremacy of the Constitution, Divi- sion of powers between Union and States, Bicam- eral Legislature, Independent Judiciary, etc are the features of Indian federation. The federal system reflects the constitutional value of unity and integrity of the nation, and more importantly the value of decentralization of power.

Another significant feature of Indian federation is dominance of Union government over States. The more number of subjects (power) have been given to the Union, such as appointment of governor by the Centre, All India Services, Integrated judici- ary, single Election Commission, President’s rule, Emergency provisions, etc. Such provisions create a strong unitary or centralizing tendency in the federal structure. It has been famously described as “a Constitution federal in form but unitary in spirit”.

AFFIRMATIVE ACTION #

The Constitution provides for affirmative action by the State to improve the conditions of the and educationally weaker sections of society by provid- ing reservations in the legislatures and government jobs. Prior to it the Indian Councils Act, 1909, the Government of India Act, 1919, and the Government of India Act, 1935, also had provided for the policy of reservation.

EMERGENCY PROVISIONS #

The Constitution has provisions for national emergency, state emergency in case of failure of constitutional machinery and financial emergency. Prior to it the Government of India Act, 1935, also had, more or less, similar provisions. By national emergency we mean an emergency which is declared when the President is satisfied that the security of

India or of any part thereof is threatened by war or external aggression or armed rebellion, he may pro- claim an emergency. In such a situation the federal character of the Political structure takes the shape of a unitary character.

By failure of constitutional machinery or state emergency we mean a situation where President feels satisfied that it is not possible to carry on the Government of a State according to the provisions of the Constitution, he can impose President’s rule in that State. The executive authority of the State becomes subordinate to the Union executive and the legislative authority of the State becomes subordi- nate to Parliament.

By financial emergency we mean a situation when the financial stability of the nation or of any part there of is at stake, then President may declare a financial emergency. Such a declaration authorises the President to issue directions to States with regard to the way they must manage their financial affairs. It also authorizes President to reduce salaries, allow- ances etc., of all such office holders who get them from Consolidated Fund of India and ordinarily are not subject to reduction.

INDEPENDENT AGENCIES #

The Constitution also provides for some Inde- pendent Agencies to perform functions allotted to them. Prior to it, the Government of India Act 1935 also had provided for such agencies. Some of the Agencies, provided by the Constitution are as follows:

• Election Commission for conducting free and fair elections of the Union and States’ Legis- latures and of the President and the Vice Pres- ident of India. Provisions have been made to make the members of the Commission free from executive control.
  • Comptroller and Auditor General to keep a watch on the finances and accounts of the Union and States. Provisions have been made to keep him free from any control of the ex- ecutive of the Union or States.
  • Union and State Public Service commissions to conduct examinations and interviews for recommending candidates for appointments of higher services both the Centre and the States.

INTEGRATED JUDICIAL SYSTEM #

Unlike the judicial systems of federal countries like the United States of America, the Indian Con- stitution established an integrated judicial system. Although the Supreme Court is at the national level, High Courts at the state level and subordinate courts at the district and lower level, there is a single hier- archy of Courts. At the top of the hierarchy is the Supreme Court. The unified judicial system is aimed at promoting and ensuring justice to all the citizens in uniform manner.

SINGLE CITIZENSHIP #

Though the Constitution envisages a dual polity i.e., Centre and States, it provides for a single citi- zenship for the whole of India. It means that every Indian is a citizen of India, irrespective of the place of his/her residence or birth anywhere in the country. This is unlike the United States of America where there is the system of double citizenship i.e. the citizen of USA and a State citizenship. Every Indian has a citizenship throughout the country with same rights. This provision in the Indian Constitution definitely reinforces the values of equality, unity and integrity.

PARLIAMENTARY FORM GOVER- NMENT #

After independence, Constitution makers had choices of Presidential system or Parliamentary system of government. While Presidential system involved separation of legislature and Executive, review of performance only after four or five years and stability; we chose for Parliamentary system. The core principle of a parliamentary government is the responsibility of the Executive to the legislature consisting of the representatives of the people. The Legislature and Executive are fused but it makes the Executive more responsible and accountable to Legislature. The powers of the Executive in parlia- mentary form of government too are more dispersed avoiding the concentration of powers in a single individual. Thus the Constitution of India prefers more responsibility over stability of the government.

SYSTEM OF LOCAL SELF-GOVER- NMENT #

This can be said to be the third most significant feature in the governance structure of India, after Fed- eral structure and Parliamentary form of government.

The ideal for organizing village Panchayats as units of self-government was provided by the Con- stitution makers under Article 40 of Part IV which received constitutional legitimacy or status through the 73rd Amendment Act of the Indian Constitution. The 73rd Amendment Act, 1992 has inserted Part IX and the Eleventh Schedule in the Constitution. Part IX provides a three-tier Panchayat system consisting of Panchayats at the village level, intermediate and district levels. It also provides for reservation of seats for the Scheduled Castes/Scheduled Tribes proportionate to their population in the area and 50% reservation of all directly elected seats for women. It further provides for an Election Commission and a Finance Commission in every State to oversee the Panchayat elections and their financing. The Eleventh Schedule provides, a list of 29 subjects which may be devolved to the village panchayats by the State concerned.

The other aspect of the Local Self-government is the organisation of three-tier Nagar palika system, as provided by the 74th Amendment Act through which XIIth Schedule was added. This is yet another mile- stone in the direction of democratic decentralization which provides power to the urban people to manage their own affairs for better development. Thus along with Panchayati Raj, the Constitutional legitimacy to the Nagar palika system forms an important and outstanding feature of the Indian constitution.

Special Attention to Scheduled Areas and Autonomy Provisions to some States #

The Fifth and Sixth Schedules of the Constitu- tion give special attention to the needs of the states in north-eastern as well as Central parts of India. The people residing in these areas have distinct and beautiful culture which needs to be protected and promoted. Therefore provisions have been made for providing them autonomy in the management of their local regions.