Salient Features of The Indian Constitution

Introduction:

The Constitution of India (“Constitution”) is a document distinctive in its substance and spirit. It is one of the lengthiest and most detailed documents. Despite a bulk of it being borrowed, it manages to distinguish itself from the constitutions of different countries owing to its several salient features. Salient features of the Constitution are distinct from the basic features of the Constitution. Basic features are those provisions of the Constitution that can neither be amended nor be taken away or abridged to protect the spirit of the Constitution. The doctrine of unamendability of basics features was propounded in Keshavananda Bharati[1] and followed in numerous cases.

Thus, in order to gain a proper understanding of the Indian state and politics, it is imperative to analyse the salient features of the Constitution.

Lengthiest

The Indian Constitution is a voluminous document, especially as compared to small booklets like the US Constitution which has less than 5000 words and the Canadian Constitution containing less than 6500 words. The Constitution originally consisted of a preamble, 395 articles, 22 parts and eight schedules, whereas presently it contains 470 articles divided into 25 parts and 12 schedules. The American Constitution originally consisted of only seven articles, the Australian Constitution had 128, the Chinese had 138 and the Canadian had 147.

Several aspects contribute to the enormity of the Indian constitution such as geographical factors resulting from the diversity of the country, historical factors such as the government of India act 1935, detailed provisions regarding the administration of states etc.

Substantially Borrowed

Dr BR Ambedkar proudly acclaimed that the Constitution of India has been framed after “ransacking all the non-constitutions of the world”[2]. Most of the provisions of the Constitution have been borrowed from different countries. The government of India act 1935 has provided the structural part of the Constitution to a large extent. The American Constitution gave the Fundamental Rights while the Directive Principles of State Policy (“DPSP”) were inspired from the Irish constitution. The political part of the constitution (the principle of Cabinet Government and the relations between the executive and the legislature) has been largely drawn from the British constitution[3]. Many other things have been borrowed from the constitutions of Canada, Australia, Germany, USSR, France, South Africa, Japan and so on. 

Both Rigid and Flexible

A rigid Constitution such as the American Constitution requires a special procedure for amendment. A flexible one, such as the British constitution can be amended even by ordinary laws. The Indian Constitution is an amalgamation of both and provides for two types of amendments under article 368- amendment by a special majority of the Parliament, amendment by a special majority of Parliament and ratification by half of the total states. Constitution also provides for a simple majority in the manner of the ordinary legislative process.

Both Federal and Unitary

KC Wheare described the Constitution as quasi-federal. In the words of D.D. Basu, the Constitution of India is neither purely federal nor unitary but is a combination of both. The constitution has often been described as federal in form but unitary in spirit because it contains all the usual features of a federation such as two governments, division of powers, written constitution, the supremacy of Constitution etc., but also contains a large number of unitary features such as a strong Centre, single constitution, single citizenship, integrated judiciary, emergency provisions etc. 

Parliamentary Form of Government

The Constitution follows the British Parliamentary system based on the principle of cooperation between the different organs of the government. The Parliamentary system is also known as the “Westminster”[4] model of government. The Parliamentary system is followed not only by the Centre but also by the states. Some of the features of the Parliamentary government are – rule by the majority party, collective responsibility, membership of ministers in the legislature, leadership of Prime Minister, dissolution of the Lok Sabha etc.

Judicial Supremacy

The concept of Parliamentary sovereignty is associated with British parliament while judicial supremacy with the American Supreme Court. The Indian Constitution makers created a proper conglomeration between the two doctrines, as a result of which, the Supreme Court can unconstitutionalise Parliamentary laws through the power of judicial review and the Parliament can amend the Constitution through its constituent power.

Independent Judiciary

The Indian judicial system is integrated and independent. The topmost court in the country is the Supreme Court followed by High Court at the state level and subordinate courts at the district level. These courts and force both central and state laws. The Supreme Court is the guardian of the Constitution and guarantees the fundamental rights of the citizens. There are constitutional provisions to ensure the independence of the Supreme Court, tenure of the judges, service conditions, expenses etc.

Sovereignty

Sovereignty protects the authority of the people and is an essential factor of every state. It confers supreme and absolute power within the whole body of the people. It can be divided into internal sovereignty that is, the power of the states to govern themselves and make laws and external sovereignty that is, the power to acquire or cede any territory for adequate reasons.

Socialist

The term “socialist”, as incorporated by the 42^nd amendment, promotes equality among people and ensures welfare. The court, in Samantha v. State of Andhra Pradesh[5], said that the term socialist is used to lessen the inequalities in income and status and to provide equality of opportunity and facilities

Secular

The Indian state comprises several regions following diverse religions. Therefore, having any one religion as the official religion is an unachievable goal. The term “secular” in the preamble of the Indian Constitution secures to all the citizens of India liberty of faith, belief, and worship. The Constitution confers many fundamental rights in the context of religion such as the right not to be discriminated against on the ground of religion[6], right to manage religious affairs, right to freely profess[7], practice and propagate any religion[8] etc. In S.R Bommai v Union of India[9], it was held that “in matters of State, religion has no place” and that secularism is one of the basic features of the Constitution.

Democratic 

Democracy gives the people the power to govern. The representative form of government is suitable for a country like India with a diverse population. In Mohan Lal Tripathi vs District Magistrate[10], while discussing the meaning of the term democracy, the court said that democracy is a concept, political philosophy and ideal which is practised by many nations that is culturally advanced and politically mature via resorting to governance by representatives of the people elected directly or indirectly.

Republic

The Constitution provides for an elected president and no hereditary ruler. All the authorities of the government are elected by the people either directly or indirectly.

Fundamental rights

Fundamental rights, under part III of the Constitution, guarantee six rights to all the citizens, that are, Right to Equality[11], Right to Freedom[12], Right against Exploitation[13], Right to Freedom of Religion[14], Cultural and Educational Rights[15] and the Right to Constitutional Remedies[16]. The purpose of these rights is to promote political democracy and limit absolutism by the executive and the legislature.

Directive Principles of State Policy

The DPSPs, described by BR Ambedkar as “novel feature” and enumerated in part IV, can be classified into three categories – socialistic, Gandhian, and liberal – intellectual. They are meant for promoting the ideal of social and economic democracy and seek to establish a welfare state in India. Unlike the fundamental rights, they are non-justiciable and unenforceable, but they are fundamental in the governance of the country and in making laws. The Indian Constitution is founded on the bedrock of balance between the Fundamental Rights and the Directive Principles[17].

Fundamental Duties

Fundamental duties, absent from the original Constitution, were added by the 42^nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh committee during the operation of the internal emergency in 1975-77. They are enshrined under Part IV-A of the Constitution and promote the spirit of common brotherhood amongst the people, protect the sovereignty unity and integrity of the country and so on. However, these duties are non-justiciable in nature. 

Judicial Review

The Parliament, in England, is sovereign and the courts do not have the power to examine and adjudicate on the acts of Parliament. However, the Indian Constitution makers expressly included judicial review as a part of fundamental rights[18] and give the Supreme Court[19] and High Court[20] the role of its guardians.

Right to Vote / Universal Adult Franchise

Every citizen of India, above the age of 18 years, possesses the right to vote without any discrimination based on caste, religion, sex, race, wealth, literacy and so on. The 61^st Constitutional Amendment Act of 1988 reduced the voting age from 21 years to 18 years. This still appears to be a highly audacious act by the Constitution makers considering the high poverty, population, illiteracy, and social inequality prevailing in India. Even the western countries extended the right to vote only gradually. For example, the USA gave the franchise to women in 1920, Britain in 1928, USSR in 1936, France in 1945, Italy in 1948 and Switzerland in 1971.

Single Citizenship

The Indian Constitution provides for only single citizenship, that is, Indian citizenship. All citizens, regardless of the state they are born in or reside in, are subjected to the same political and civil rights of citizenship and no discrimination is made between them except in cases of the tribal area.

Independent Bodies

The Constitution has certain independent bodies apart from the legislative, executive, and judicial ones such as the Election Commission to ensure free and fair elections, Comptroller and Auditor General of India to audit the accounts of the governments, the Union Public Service Commission to examine recruitment to all India services etc.

Emergency provisions

The Constitution consist of provisions that enable the President to handle any extraordinary situation efficiently. The purpose of this provision is to protect the sovereignty, unity, integrity, and security of the democratic political system of India. The Constitution contemplates three types of emergencies namely:

1. National emergency[21] on the ground of war or external aggression or armed rebellion
2. State emergency on the ground of failure of constitutional machinery in the states[22] or failure to comply with the directions of the Centre[23] and
3. Financial emergency on the ground of threat to the financial stability or credit of India[24]

During times of an emergency, the central government gains all the power and control and converts the federal structure into a unitary one without an amendment to the Constitution.

Safeguards to Minorities

Minorities have been provided with several safeguards such as the freedom of religion and cultural and educational rights.

No Communal Representation

In 1909, seats were reserved on the basis of religion. In the Government of India Act 1935, seats were distributed among Anglo Indians, Sikhs, Christians, Muslims, scheduled castes, and scheduled Tribes. The present Constitution makes no communal reservation.

Three-tiered Government

Federal constitutions usually provide for a dual polity and so did the Indian constitution and contained provisions regarding the organisation and powers of the central government and the state government. However, later, the 73^rd amendment act of 1992 gave constitutional recognition to the panchayats i.e., rural local governments by adding part IX[25] and a new schedule 11 to the Constitution. Additionally, the 74^th amendment act of 199 give constitutional recognition to the municipalities i.e., open local governments by adding a new part IX-A[26] and a new schedule 12.

Cooperative societies

Cooperative societies were given constitutional status and protection in 2011[27]. The 97th Constitutional Amendment Act of 2011 made the right to form cooperative Societies a fundamental right[28] and included a new DPSP on their promotion[29]. The amendment also added a new part in the constitutional text which is entitled “The Cooperative Societies”[30] to ensure the democratic, professional, autonomous, and economic function of the cooperative societies. Parliament was also empowered to make appropriate laws for the same.

Conclusion

The founding fathers of the Constitution inculcated a lot of salient features in the Constitution. Many of those are adopted but many are unique to the Indian scenario. Even though the Constitution makers tried their best to accommodate the differences among the people, regrettably, the Indian State still seems to be infected by vices such as castism, communalism, sexism etc.

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References:

[1] (Bakshi, 2002) Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1641

[2] Constituent Assembly Debates, Volume VII, P. 35–38

[3]  P M Bakshi, The Constitution of India, 4 (2002)

[4] Westminster is a place in London where the British Parliament is located. It is often used as a symbol/synonym of the British Parliament.

[5] Samantha v. State of Andhra Pradesh, AIR 1997 SC 3297

[6] Article 15, The Constitution of India

[7] Article 26, The Constitution of India

[8] Article 25, The Constitution of India

[9] S.R Bommai v Union of India, 1994 AIR 1918

[10] Mohan Lal Tripathi v. District Magistrate, 1993 AIR 2042

[11] Article 14-18, The Constitution of India

[12] Article 19-22, The Constitution of India

[13] Article 23-24, The Constitution of India

[14] Article 25-28, The Constitution of India

[15] Article 29-30, The Constitution of India

[16] Article 32, The Constitution of India

[17] Minerva Mills v. Union of India, AIR 1980 SC 1789

[18] Article 13, The Constitution of India

[19] Article 32, The Constitution of India

[20] Article 226, The Constitution of India

[21] Article 352, The Constitution of India

[22] Article 356, The Constitution of India

[23] Article 365, The Constitution of India

[24] Article 360, The Constitution of India

[25] Part IX, The Constitution of India

[26] Part IX-A, The Constitution of India

[27] https://legislative.gov.in/sites/default/files/amend97.pdf

[28] Article 19, The Constitution of India

[29] Article 43B, The Constitution of India

[30] Article 243ZH- 243ZT, The Constitution of India