MODULE 1-PART 2
SALIENT FEATURES OF OUR CONSTITUTION
- DRAWN FROM VARIOUS SOURCES
Though our Constitution may be said to be a ‘borrowed’ Constitution, the credit of its framers lies in gathering the best features of each of existing Constitutions and in modifying them with a view to avoiding the faults that have been disclosed in their working and to adapting them to the existing conditions and needs of this country.
- SUPPLEMENTED BY MULTIPLE AMENDMENTS
Our Constitution has been recast in material ways by multiple amendments.
- THE LENGTHIEST WRITTEN CONSTITUTION
The Constitution of India has the distinction of being the most lengthy and detailed constitutional document the world has so far produced. There are many factors leading to its bulk. Our Constitution provides the Constitution of the Union and all the States.It contains detailed provisions regarding administrative matters. It embodies detailed provisions regarding organization of Judiciary, Public Service Commission, and Election Commission etc. The vastness of the country and variety of problems required varied solutions. Part XVI, Part XVII, Fifth and Sixth Schedules had to be enacted to tackle peculiar problems. Articles 371, 371A to 371-I have been inserted to meet the regional demands.
- ROLE OF CONVENTIONS
The framers of the Constitution gave space for the growth of conventions to supplement the Constitution in matters where it is silent.
- BOTH FLEXIBLE AND RIGID
The Constitution of India is neither rigid nor flexible, but a synthesis of both. Article 368 provides for two types of amendments:
(i) Some provisions can be amended by a special majority of the Parliament, i.e., a two third majority of the members of each House present and voting, and a majority of the total membership of each House.
(b) Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.
At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.
- A FEDERAL SYSTEM WITH UNITARY BIAS
The Constitution of India establishes a federal system of Government. It contains all the usual features of a federation, viz., two Government, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent
judiciary and bicameralism. However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions and so on.
- PARLIAMENTARY FORM OF GOVERNMENT
The Constitution of India has opted for the British Parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of co-operation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs. The parliamentary system is also known as the ‘Westminster’ Model of Government, responsible Government and Cabinet Government. The Constitution establishes the parliamentary system not only at the Centre, but also in the states.
The features of parliamentary government in India are:
(a) Presence of nominal and real executives;
(b) Majority party rule,
(c) Collective responsibility of the executive to the legislature,
(d) Membership of the ministers in the legislature,
(e) Leadership of the Prime Minister or the Chief Minister,
(f) Dissolution of the lower House (Lok Sabha or Assembly).
In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.
- REPUBLICAN NATURE
Republic means The Head of State(HoS) is elected either directly or indirectly. In india HoS is elected indirectly and in USA it is elected directly. UK follows a constitutional monarch
- MIX OF PARLIAMENTARY SOVEREIGNITY AND JUDICIAL SUPREMACY
In the British parliamentary system, parliament was supposed to be supreme and sovereign. There were no limitations on its powers in as much as there was no written constitution and until 2000 the Judiciary had no power of judicial review of legislation even if a law violated fundamental human rights. In the U.S, system, the Supreme Court with its power of judicial review and of interpreting the Constitution has assumed supremacy. In India, the Constitution has arrived at a middle course and a compromise between the British sovereignty of Parliament and American judicial supremacy.Both Parliament and the Supreme Court are supreme in their respective spheres. While the Supreme Court may declare a law passed by Parliament ultra vires as being violative of the Constitution, Parliament may within certain restrictions amend most parts of the Constitution.
- INTEGRATED AND INDEPENDENT JUDICIARY
The Indian Constitution establishes a judicial system that is integrated as well as independent. The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts, that is, district courts and other lower courts. This single system of courts enforces both the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary. The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution. Hence, the Constitution has made various provisions to ensure its independence–security of tenure of the judges, fixed service conditions for the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India, prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement, power to punish for its contempt vested in the Supreme Court, separation of the judiciary from the executive, and so on.
- SINGLE CITIZENSHIP
Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship. In countries like USA, on the other hand, each person is not only a citizen of USA, but also a citizen of the particular state to which he belongs. Thus, he owes allegiance to both and enjoys dual sets of rights–one conferred by the National government and another by the state government. In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them.
- UNIVERSAL ADULT FRANCHISE
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth and so on. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
- SECULAR STATE
The Constitution of India stands for a Secular State. Hence, it does not uphold any particular religion as the official religion of the Indian State. The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.
The Western concept of secularism connotes a complete separation between the religion (the church) and the state (the politics). This negative concept of secularism is inapplicable in theIndian situation where the society is multireligious. Hence, the Indian Constitution embodies the positive concept of secularism,i.e., giving equal respect to all religions or protecting all religions equally.
- FUNDAMENTAL RIGHTS AND REMEDIES
Part III of the Indian Constitution guarantees six fundamental rights to all the citizens:
(a) Right to Equality (Articles 14–18);
(b) Right to Freedom (Articles 19–22);
(c) Right against Exploitation (Articles 23–24);
(d) Right to Freedom of Religion (Articles 25–28);
(e) Cultural and Educational Rights (Articles 29–30); and
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in nature, that is, they are enforceable by the courts for their violation. However, the Fundamental Rights are not absolute and subject
to reasonable restrictions. Further, they are not sacrosanct and can be curtailed or repealed by the Parliament through a Constitutional Amendment Act. They can also be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
- DIRECTIVE PRINCIPLES OF STATE POLICY
Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution. They are enumerated in Part IV of the Constitution. They can be classified into three broad categories–socialistic, Gandhian and Liberal intellectual.The Directive Principles are meant for promoting the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India. However, unlike the Fundamental Rights, the directives are non-justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’.
- FUNDAMENTAL DUTIES
The original constitution did not provide for the Fundamental Duties of the citizens. These were added by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee.10 duties were added. The 86th Constitutional Amendment Act of 2002 added one more fundamental duty. The Part IV-A of the Constitution (which consists of only one Article 51-A) specifies the eleven Fundamental Duties. Like the Directive Principles, the duties are also non-justiciable in nature.
- EMERGENCY PROVISIONS
The Indian Constitution contains elaborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationality behind the incorporation of these provisions is to safeguard the sovereignty, unity, integrity and
security of the country, the democratic political system and the Constitution. The Constitution envisages three types of emergencies, namely:
(a) National emergency
(b) State emergency (President’s Rule)
(c) Financial emergency
During an emergency, the Central Government becomes all powerful and the states go into the total control of the centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution.
- INDEPENDENT BODIES
The Indian Constitution not only provides for the legislative,executive and judicial organs of the Government (Central and state) but also establishes certain independent bodies. These are:
(a) Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India.
(b) Comptroller and Auditor-General of India to audit the accounts of the Central and state governments.
(c) Union Public Service Commission to conduct examinations for recruitment to all-India services and higher Central services and to advise the President on disciplinary matters.
(d) State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters.
- THREE TIER GOVERNMENT
The 73rd and 74th Constitutional Amendment Acts(1992) have added a third-tier of Government which is not found in any other Constitution of the world. The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local governments) by adding a new Part IX and a new Schedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992 gave constitutional recognition to the municipalities (urban local governments) by adding a new Part IX-A and a new Schedule 12 to the Constitution.
- CO-OPERATIVE SOCIETIES
The 97th Constitutional Amendment Act of 2011 gave a constitutional status and protection to co-operative societies. In this context, it made the following three changes in the Constitution:
- It made the right to form co-operative societies a fundamental right (Article 19).
- It included a new Directive Principle of State Policy on promotion of co-operative societies (Article 43-B).
- It added a new Part IX-B in the Constitution which is entitled as “The Co-operative Societies”
The new Part IX-B contains various provisions to ensure that the co-operative societies in the country function in a democratic, professional, autonomous and economically Sound manner. It empowers the Parliament in respect of multi-state cooperative societies and the state legislatures in respect of other co-operative societies to make the appropriate law.
The Constitution of India is a most comprehensive document. It is unique in many ways. It cannot be fitted in any particular mould or model. It is a blend of the rigid and the flexible, federal and unitary.It attempts a balance between the fundamental rights of the individual on the one hand and the socio-economic interests of the people and security of the state on the other. Also, it presents a via media between the principles of parliamentary sovereignty and judicial supremacy.
PREVIOUS YEARS’ QUESTIONS (PRELIMS)
- The main advantage of the parliamentary form of government is that (2017)
- the executive and legislature work independently.
- it provides continuity of policy and is more efficient.
- the executive remains responsible to the legislature.
- the head of the government cannot be changed without election.
- The Indian parliamentary system is different from the British parliamentary system in that India has (1998)
- both a real and a nominal executive
- a system of collective responsibility
- bicameral legislature
- the system of judicial review
- Which one of the following is not explicitly stated in the Constitution of India but followed as a convention? (1995)
- The Finance Minister is to be a Member of the Lower House
- The Prime Minister has to resign if he loses majority in the Lower House
- All the parts of India are to be represented in the Council of Ministers
- In the event of both the President and the Vice-President demitting office simultaneously before the end of their tenure the Speaker of the lower House of the Parliament will officiate as the President.
MODEL QUESTION (MAINS)
Compare the features of Indian and UK constitution and examine the similarities and differences in it. (150w/10M)