Chapter 3: SALIENT FEATURES OF THE CONSTITUTION

Introduction


Lengthiest written constitution: 465 articles [25 parts] and 12 schedules. This can be due to vast geographic factors, vast historical factors, single constitution for centre and states, dominance of legal luminaries in the assembly.


Drawn from various constitutions of the world: Structural part [GoI Act, 1935], political part [British constitution].
 

Partly rigid and flexible


Federal with unitary bias: There are certain federal features of the constitution viz. Two governments, separation of powers, bicameralism, written constitution – rigid and supreme, independent judiciary. The non federal features are strong centre, singe constitution, single citizenship, no equal representation to states in upper house, destructible states, states can’t cede from union, integrated audit, election machinery. All India service, appointment of governor and veto over state bills.


Parliamentary form of government: Indian democracy is based on Westminster model i.e. Leadership of PM, dissolution of lower house, dual membership of Executive, Legislature is supreme, Majority party rule. However some differences between Indian and British systems are Indian Parliament isn’t sovereign body unlike British and President isn’t a hereditary head but elected.


Balance between Judicial and Parliamentary supremacy: Indian constitution has mentioned “Procedure established by law” which reduces judicial review by courts unlike in USA [“due process of law”].  Thus Indian courts can invalidate laws only if they are unconstitutional, but parliament can use its constituent power to amend the constitution. 


Integrated and independent judiciary: A single system of courts enforces for both union and state laws. Independence of courts is ensured by security of tenure, protection against arbitrary removal, all expense charged on the consolidated fund, ban on employment after retirement, contempt of court.

Fundamental rights: Justifiable by courts. Guarantee political democracy. Inspired by USA constitution.  Protect against arbitrary laws of legislature and tyranny of executive. The courts can issue writs to enforce these rights. These can be suspended during emergency. However reasonable restrictions can be placed on these rights.

Directive principles of state policy: These are non justifiable, non enforceable by courts. They are meant to promote social, economic democracy. They are inspired by Irish constitution. They are also part of Instrument of instructions in GoI Act, 1935.

Fundamental duties: These were added by the 42nd amendment. They are inspired from Russian constitution. They are non justifiable and non enforceable by courts.

Secular state: This word was added to the preamble by 42nd amendment. Western concept of secularism “Separation of church and state” doesn’t apply to India due to its multi-religious nature. Indian secularism is positive “State shall treat all religions equally”.

Universal franchise: This was unanimously agreed by the constituent assembly. All people above age 18 [reduced from 21 by 61st constitution amendment] can vote. This ensures broad based participation in the democracy.

Single citizenship: Irrespective of state in which they are born or reside all people enjoy same political rights.

Independent bodies: Certain bodies have been created like CAG, EC, and UPSC etc.

Emergency provision: To protect sovereignty, security, integrity, unity constitution has certain emergency powers. During emergencies, centre becomes all powerful and states go into its total control. This converts federal structure into unitary without formal amendment to the constitution [unique feature].

Constitutional recognition to local governments [73rd, 74th amendment] is also unique to India.


Inspired from other constitutions

        Fundamental rights – USA

        Fundamental duties – USSR

        Directive principles – Irish

        Procedure established by law – Japan

        Scheme of Indian federation, residuary powers – Canada

        Procedure to amend constitution – South Africa

        Emergency powers – Germany

        Concurrent list – Australia

        Liberty, equality, fraternity – French

Quiz

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