Introduction to the Constitution of India

 Introduction to the Constitution of India

 

  • In both content and spirit, the Indian Constitution is unique. Despite borrowing from practically every other country’s constitution, India’s Constitution contains some distinguishing aspects that set it apart from other countries’ constitutions.
  • A number of original aspects of the Constitution (as approved in 1949) have undergone significant alteration as a result of various amendments, including the 7th, 42nd, 44th, 73rd, 74th, 97th, and 101st Amendments. In fact, the 42nd Amendment Act (1976) is known as the “Mini-Constitution” because of the numerous and significant changes it made to the Constitution. The Supreme Court, however, decided in the Kesavananda Bharati case (1973) that Parliament’s constituent power under Article 368 does not allow it to change the Constitution’s “fundamental structure.”
  • In both content and spirit, the Indian Constitution is unique. Despite borrowing from practically every other country’s constitution, India’s Constitution contains some distinguishing aspects that set it apart from other countries’ constitutions.
  • A number of original aspects of the Constitution (as approved in 1949) have undergone significant alteration as a result of various amendments, including the 7th, 42nd, 44th, 73rd, 74th, 97th, and 101st Amendments. In fact, the 42nd Amendment Act (1976) is known as the “Mini-Constitution” because of the numerous and significant changes it made to the Constitution. The Supreme Court, however, decided in the Kesavananda Bharati case (1973) that Parliament’s constituent power under Article 368 does not allow it to change the Constitution’s “fundamental structure.”

The Constitution’s Most Important Features
The following are the key characteristics of the Constitution as it stands today:

1. The Constitution with the Longest Text
Written constitutions, such as the American Constitution, are distinguished from unwritten constitutions, such as the British Constitution. India’s Constitution is the longest of all the world’s written constitutions. It is a lengthy, dense, and complete document.

The Constitution had a Preamble, 395 Articles (split into 22 Parts), and 8 Schedules when it was first written in 1949. It now consists of a Preamble, around 470 Articles (split into 25 Parts), and 12 Schedules (as of 2019). Since 1951, roughly 20 articles and one part (VII) have been deleted, while 95 articles, four parts (IVA, IXA, IXB, and XIVA), and four schedules (9, 10, 11 and 12) have been added. There are no other constitutions in the world with as many articles and schedules as the United States Constitution.

Our Constitution’s colossal size is the result of four elements. They are:

(a) Geographical elements, such as the country’s vastness and diversity.
(b) Historical factors, such as the hefty Government of India Act of 1935’s influence.
c) A single Constitution for the federal government and the states.
(d) Legal luminaries’ dominance in the Constituent Assembly.

Not only do the fundamental principles of government appear in the Constitution, but so do precise administrative provisions. Furthermore, in India, many issues that are left to regular legislation or established political traditions in other modern democratic countries have been included in the constitutional document itself.

2. Taken from various sources
The Indian Constitution borrows the majority of its provisions from other countries’ constitutions as well as the Government of India Act of 1935. Dr. B.R. Ambedkar boasted that the Indian Constitution was drafted after “ransacking all known Constitutions of the World.”

The Government of India Act of 1935 is largely responsible for the structural element of the Constitution. The philosophical sections of the Constitution (the Fundamental Rights and Directive Principles of State Policy) are based on the American and Irish Constitutions, respectively. The political aspects of the Constitution (the notion of Cabinet Government and the relationship between the Executive and the Legislature) were heavily influenced by the British Constitution.

The rest of the Constitution is based on the constitutions of Canada, Australia, Germany, the former Soviet Union (now Russia), France, South Africa, Japan, and others.

The Government of India Act, 1935 has had the most significant influence and is the Constitution’s most important source of material. This Act contains the Federal Scheme, the Judiciary, Governors, Emergency Powers, Public Service Commissions, and most administrative elements. More over half of the Constitution’s provisions are similar to or closely resemble the Act of 1935.

3. Blend of Rigidity and Flexibility
There are two types of constitutions: stiff and flexible. The American Constitution, for example, is a strict Constitution that requires a unique method for change. A flexible constitution, on the other hand, is one that can be changed in the same way that ordinary laws can be changed, such as the British Constitution.

India’s constitution is neither rigid nor flexible, but rather a hybrid of the two. There are two sorts of changes allowed under Article 368:
(a) A special majority of the Parliament, i.e. a two-thirds majority of the members of each House present and voting, plus a majority of the total membership of each House, can change certain provisions.
(b) Other clauses can be changed by a special majority of Parliament and ratification by half of the states.

Simultaneously, certain provisions of the Constitution can be altered by a simple majority of the Parliament through the normal legislative procedure. These changes are notable in that they do not fall under Article 368.

4. Unitary Bias Federal System
The Indian Constitution outlines a federal government framework. It has two governments, a division of powers, a written Constitution, supremacy of the Constitution, rigidity of the Constitution, an independent judiciary, and bicameralism, among other things.

The Indian Constitution, on the other hand, includes a strong Centre, a single Constitution, a single citizenship, constitutional flexibility, an integrated judiciary, the nomination of state governors by the Centre, all-India services, emergency provisions, and so on.

Furthermore, the phrase “federation” appears nowhere in the Constitution. Article 1 of the Constitution, on the other hand, refers to India as a ‘Union of States,’ implying two things: first, the Indian Federation is not the outcome of a state agreement, and second, no state has the power to secede from it.

As a result, the Indian Constitution has been variously defined as ‘federal in form but unitary in spirit,’ ‘quasi-federal,’ ‘bargaining federalism,’ and ‘co-operative federalism,’ by K.C. Wheare and Morris Jones, respectively.

Austin, Ivor Jennings’ ‘federation with a centralizing tendency,’ and so forth.

5. Parliamentary Form of Government
The Indian Constitution prefers the British Parliamentary System of Government to the American Presidential System of Government. The parliamentary system is founded on the principles of cooperation and coordination between the legislative and executive branches, whereas the presidential system is founded on the theory of separation of powers.

The Westminster Model of Government, responsible government, and cabinet government are all terms used to describe the parliamentary system. Not just at the federal level, but also at the state level, the Constitution established a parliamentary system.

The following are the characteristics of India’s parliamentary government:

(a) The presence of nominal and real executives; (b) Majority party rule; (c) The executive’s collective responsibility to the legislature; (d) Ministerial membership in the legislature; (e) The Prime Minister’s or Chief Minister’s leadership; (f) The dissolution of the lower House (Lok Sabha or Assembly).

Despite the fact that the Indian parliamentary system is mainly based on the British model, there are some key changes. The Indian Parliament, for example, is not a sovereign entity like the British Parliament. Furthermore, the Indian state (republic) has an elected head, whereas the British state (monarchy) has a hereditary head.

The function of the Prime Minister in a parliamentary system, whether in India or the United Kingdom, has become so important and critical that political scientists refer to it as a “Prime Ministerial Government.”

6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
The British Parliament is connected with the notion of Parliamentary sovereignty, while the American Supreme Court is associated with the principle of judicial supremacy.

The Supreme Court of India has a narrower breadth of judicial review power than the Supreme Court in the United States, just as the Indian parliamentary system differs from the British one. This is because the American Constitution guarantees ‘due process of law,’ as opposed to the Indian Constitution’s (Article 21) guarantee of ‘procedure established by law.’

As a result, the Indian Constitution’s founders favored a correct synthesis of the British parliamentary sovereignty idea and the American judicial supremacy premise. The Supreme Court, on the one hand, can use its judicial review power to declare parliamentary laws invalid. Through its constituent authority, Parliament, on the other hand, can modify the majority of the Constitution.

7. A Judiciary that is both integrated and independent
The Indian Constitution establishes an integrated and autonomous judicial system.

The Supreme Court is the highest court in the country’s integrated legal system. There are state-level high courts beneath it. A hierarchy of subordinate courts, such as district courts and other inferior courts, exists beneath a high court. Unlike the United States, where federal laws are enforced by the federal judiciary and state laws are enforced by the state judiciary, this one system of courts enforces both central and state laws.

The Supreme Court is the highest court of appeal in the United States, as well as the guarantor of citizens’ fundamental rights and the protector of the Constitution. As a result, the Constitution has made various provisions to ensure its independence–judicial tenure, fixed service conditions, all Supreme Court expenses charged to the Consolidated Fund of India, prohibition on discussion of judges’ conduct in legislatures, and prohibition on practice after retirement.

8. Fundamental Rights
Part III of the Indian Constitution guarantees all citizens six fundamental rights: (a) Right to Equality (Articles 14–18); (b) Right to Freedom (Articles 19–22); (c) Right against Exploitation (Articles 23–24); (d) Right to Religious Freedom (Articles 25–28); (e) Cultural and Educational Rights (Articles 29–30); and (f) Right to Constitutional Remedies (Articles 29–30).

The purpose of the Fundamental Rights is to promote the idea of democratic democracy. They serve as checks on the executive’s tyranny and the legislature’s arbitrary laws. They are justiciable in nature, which means that they can be enforced by the courts if they are broken. For the restoration of his rights, the offended person can go straight to the Supreme Court, which can issue writs of habeas corpus, mandamus, prohibition, certiorari, and quo warranto.

Fundamental Rights, on the other hand, are not absolute and are subject to reasonable limitations. Furthermore, they are not inviolable; Parliament can limit or repeal them by a Constitutional Amendment Act. Except for the rights provided by Articles 20 and 21, they can also be suspended during the operation of a National Emergency.

9. Directive Principles of State Policy
The Directive Principles of State Policy, according to Dr. B.R. Ambedkar, is a “new feature” of the Indian Constitution. Part IV of the Constitution enumerates them. Socialistic, Gandhian, and liberalintellectual are the three basic categories they fall into.

The Directive Principles are intended to promote social and economic democracy as a goal. They want India to become a “welfare state.” The directives, unlike the Fundamental Rights, are non-justiciable in nature, meaning that they cannot be enforced by the courts if they are violated. Yet, according to the Constitution, “these values are important in the government of the country, and it shall be the obligation of the state to apply these principles in establishing legislation.” As a result, they put a moral obligation on state authorities to implement them. However, the main driving factor (sanction) is political, i.e., public opinion.

The Supreme Court concluded in the Minerva Mills case (1980) that “the Indian Constitution is established on the cornerstone of the balance between Fundamental Rights and Directive Principles.”

10. Fundamental Duties
Citizens’ Fundamental Duties were not included in the original constitution. On the proposal of the Swaran Singh Committee, these were introduced during the internal emergency of 1975–77 by the 42nd Constitutional Amendment Act of 1976. One more fundamental obligation was added by the 86th Constitutional Amendment Act of 2002.

The eleven Fundamental Duties are specified in Part IV-A of the Constitution (which consists of only one Article 51-A): to respect the Constitution, national flag, and national anthem; to protect the country’s sovereignty, unity, and integrity; to promote the spirit of common brotherhood among all people; to preserve the rich heritage of our composite culture, and so on.

The fundamental duties serve as a reminder to individuals that, while exercising their rights, they must also be aware of the obligations they have to their country, society, and fellow citizens. However, the responsibilities, like the Directive Principles, are non-justiciable in nature.

11. A State of Secularism
The Indian Constitution promotes a secular state. As a result, it does not recognize any specific religion as the official religion of India. The following provisions of the Indian Constitution demonstrate the country’s secular nature:
(a) The 42nd Constitutional Amendment Act of 1976 added the term “secular” to the Indian Constitution’s Preamble.
(a) The Preamble guarantees all Indian citizens the freedom of belief, faith, and worship.
(c) No one should be denied equality before the law or equal protection under the law by the state (Article 14).
(d) The State shall not discriminate on the basis of religion against any person (Article 15).
(e) Equality of opportunity in public employment for all people (Article 16).
(f) Everyone has the same right to religious freedom and the freedom to profess, practice, and promote any religion (Article 25).
(g) Every religious denomination or component thereof has the authority to govern its own religious affairs (Article 26).
(h) No one may be forced to pay taxes in order to promote a specific religion (Article 27).
I No religious instruction shall be provided in any state-run educational institution (Article 28).
(j) Any segment of the population has the right to preserve its own language, writing, or culture (Article 29).
(k) All minorities have the right to create and run their own educational institutions (Article 30).
(l) The State shall make every effort to ensure that all people have access to a Uniform Civil Code (Article 44).

Secularism is a Western notion that refers to a total separation of religion (church) and state (politics). In India, when the society is multireligious, this negative concept of secularism is irrelevant. As a result, the Indian Constitution embodies the positive concept of secularism, i.e., treating all religions equally or protecting them equally.

Furthermore, the Constitution has repealed the former system of community representation, which involved the reserving of seats in legislatures based on religious affiliation. It does, however, provide for the temporary reservation of seats for scheduled castes and scheduled tribes in order to guarantee that they are adequately represented.

12. Universal Adult Franchise
The Indian Constitution establishes universal adult franchise as the basis for Lok Sabha and state legislative assembly elections. Every citizen over the age of 18 has the right to vote, regardless of caste, ethnicity, religion, sex, literacy, money, or other factors. The 61st Constitutional Amendment Act of 1988 decreased the voting age from 21 to 18 years in 1989.

The Constitution-makers’ decision to grant universal adult franchise was a risky experiment, especially given the country’s enormous size, large population, significant poverty, social inequality, and widespread illiteracy.

The universal adult franchise broadens democracy, boosts common people’s self-esteem and prestige, supports the concept of equality, allows minorities to protect their interests, and provides new hope and vistas for the weaker sectors.

13. Single Citizenship
Despite the fact that the Indian Constitution is federal and envisions a dual polity (centre and states), it only recognizes one citizenship: Indian citizenship.

In countries such as the United States, on the other hand, each person is not only a citizen of the United States, but also of the state to which he belongs. As a result, he owes allegiance to both and has two sets of rights–one granted by the federal government and the other by the state government.

In India, all citizens, regardless of where they were born or where they live, have the same political and civil rights as other citizens throughout the country, and there is no discrimination.

Despite the constitution’s promise for a single citizenship and equal rights for all, India has had communal riots, class battles, caste wars, linguistic clashes, and ethnic conflicts. This means that the Constitution’s long-held goal of creating a cohesive and integrated Indian country has not been fully realized.

14. Independent Bodies
The Indian Constitution establishes a number of autonomous entities in addition to the government’s legislative, executive, and judicial branches (both central and state). They are envisioned under the Constitution as the backbone of India’s democratic government. These are: (a) the Election Commission, which is responsible for ensuring free and fair elections to the Parliament, state legislatures, and the offices of President and Vice-President of India.
(b) The accounts of the central and state governments would be audited by the Comptroller and Auditor-General of India. He serves as the public purse’s protector, commenting on the legality and propriety of government spending.
(c) The Union Public Service Commission is responsible for conducting examinations for all-India and higher-level Central posts, as well as advising the President on disciplinary matters.
(d) Every state has a Public Public Service Commission that conducts examinations for state service recruitment and advises the governor on disciplinary problems.

The Constitution guarantees these bodies’ independence through measures such as tenure security, defined service conditions, and expenditures being charged to the Consolidated Fund of India, among others.

15. Provisions in Case of Emergency
The Indian Constitution provides extensive emergency powers that allow the President to effectively deal with any unexpected circumstance. The rationale for these clauses is to protect the country’s sovereignty, unity, integrity, and security, as well as the democratic political system and the Constitution.

The Constitution recognizes three different sorts of emergencies:

(a) National emergency (Article 352) due to war, external aggression, or armed rebellion;

(b) State of emergency (President’s Rule) due to failure of the states’ constitutional machinery (Article 356) or failure to follow the Centre’s orders (Article 365); and

(c) Financial emergency posed by a threat to India’s financial stability or credit (Article 360).

During an emergency, the federal government becomes all-powerful, and the states are completely under the control of the federal government. Without a formal revision to the Constitution, it transforms the federal structure into a unitary one. The Indian Constitution is unique in that it allows for the shift of the political structure from federal (during normal times) to unitary (during emergencies).

16. Three-tier Government

Originally, the Indian Constitution, like any other federal Constitution, established a dual polity and included rules governing the organization and functions of the federal government and the states. Later, the 73rd and 74th Constitutional Amendment Acts (1992) created a third tier of government (i.e., local) that is not seen in any other international constitution.

The 73rd Amendment Act of 1992 added a new Part IX and a new Schedule 11 to the Constitution, giving the panchayats (rural local governments) formal legitimacy. Similarly, the 74th Amendment Act of 1992 added a new Part IX-A and a new Schedule 12 to the Constitution, giving municipalities (urban local governments) official recognition.

17. Cooperative Societies 

Co-operative societies now have constitutional status and protection thanks to the 97th Constitutional Amendment Act of 2011. In this context, it made the following three constitutional amendments:

1. It established the freedom to establish cooperative societies as a basic right (Article 19).

2. It incorporated a new Directive Principle of State Policy (Article 43-B) on the promotion of cooperative organizations.

3. It inserted “The Co-operative Societies” (Articles 243-ZH to 243-ZT) to Part IX-B of the Constitution.

The new Part IX-B comprises a number of requirements aimed at ensuring that the country’s cooperative societies operate in a democratic, professional, autonomous, and financially healthy manner. It authorizes the Parliament to make the relevant law in the case of multi-state cooperative societies and state legislatures in the case of other cooperative societies.

Criticism of the Constitution

The Constituent Assembly of India developed and enacted the Indian Constitution, which has been challenged on the following grounds:

1. A Constitution that was borrowed

The Indian Constitution, according to opponents, contains nothing new or unique. They called it a “borrowed Constitution,” a “bag of borrowings,” a “hotch-potch Constitution,” or a “patchwork” of many world constitution documents. This criticism, however, is unjust and unreasonable. This is because the Constitution’s framers made required changes to characteristics adopted from other constitutions to make them suitable for Indian conditions while avoiding their flaws.

“One likes to wonder whether there can be anything new in a Constitution framed at this hour in the history of the world,” Dr. B.R. Ambedkar, Chairman of the Drafting Committee, stated in response to the above critique before the Constituent Assembly. When the first written Constitution was drafted, it was more than a century ago. Many countries have followed suit, reducing their constitutions to writing. It has long been agreed upon what a Constitution’s scope should be.

In the same way, the basics of a Constitution are universally accepted. Given these considerations, all Constitutions must have identical main provisions. The only new features, if any, in a Constitution drafted so late in history are the changes made to correct flaws and adapt it to the requirements of the country. The charge of making a blind copy of other countries’ constitutions is, I’m sure, based on a poor understanding of the Constitution.”

2. A Carbon Copy of the 1935 Act

According to opponents, the writers of the Constitution incorporated a considerable number of clauses from the Government of India Act of 1935 into the Indian Constitution. As a result, the Constitution is referred to as a “Carbon Copy of the 1935 Act” or a “Amended Version of the 1935 Act.” The Indian Constitution, for example, is “both in language and essence a near duplicate of the Act of 1935,” according to N. Srinivasan. Similarly, British Constitutionalist Sir Ivor Jennings stated that “the Constitution flows directly from the Government of India Act of 1935, from which several of its articles are nearly textually duplicated.”

According to P.R. Deshmukh, a member of the Constituent Assembly, “the Constitution is essentially the Government of India Act of 1935 with the addition of adult franchise.”

In the Constituent Assembly, the same Dr. B.R. Ambedkar responded to the preceding critique, saying, “As to the accusation that the Draft Constitution has reproduced a considerable part of the provisions of the Government of India Act, 1935, I offer no apologies.” Borrowing is not anything to feel embarrassed about. There is no plagiarism involved. Nobody owns the patent rights to a Constitution’s essential ideas. What I regret is that the clauses extracted from the Government of India Act, 1935, are primarily about administrative details.”

3. Un-Indian or Anti-Indian

The Indian Constitution is ‘un-Indian’ or ‘anti-Indian,’ according to detractors, because it does not reflect India’s political traditions and character. They said that the Constitution’s foreign nature made it unsuited for Indian conditions or unworkable in India. “We wanted Veena or Sitar music, but here we got the music of an English band,” K. Hanumanthaiya, a member of the Constituent Assembly, said in this context. That was due to the fact that our founding fathers were educated in this manner.” Another Constituent Assembly member, Lokanath Misra, described the Constitution as a “servile replication of the west, much more – a slavish capitulation to the west.” “The concepts on which this draft Constitution is written have no manifest link to the essential ethos of India,” Lakshminarayan Sahu, a member of the Constituent Assembly, added. This Constitution would be ineffective and would fall apart soon after it was implemented.”

4. An Un-Gandhian Constitution 

The Indian Constitution, opponents claim, is un-Gandhian because it lacks the ideology and principles of Mahatma Gandhi, the father of the Indian nation. They believed that the Constitution should have been elevated and based on village and district panchayats. “That is exactly the kind of Constitution Mahatma Gandhi did not want and did not envisage,” said K. Hanumanthaiya, a member of the Constituent Assembly. Another member of the Constituent Assembly, T. Prakasam, linked the omission to Ambedkar’s non-participation in the Gandhian movement and his hostility to Gandhian ideas.

5. Elephantine Size

The Indian Constitution, according to detractors, is overly long and complex, and contains certain extraneous elements. A British Constitutionalist, Sir Ivor Jennings, commented that the provisions borrowed were not always well-selected, and that the constitution was, in general, excessively long and convoluted.

“The elephant is the emblem and crest that we have adopted for our assembly,” H.V. Kamath, a member of the Constituent Assembly, said in this regard. Perhaps this explains why our constitution is also the world’s heaviest.” “I’m sure the House does not think that we should make the Constitution an elephantine document,” he added.

6. Paradise of the Lawyers

The Indian Constitution, according to opponents, is overly legalistic and complex. They claimed that the constitution’s legal terminology and phraseology make it a difficult document to understand. Sir Ivor Jennings described it as a “lawyer’s paradise.”

“The draft tends to make people more litigious, more prone to go to law courts, less truthful, and less likely to adopt the techniques of truth and non-violence,” H.K. Maheswari, a member of the Constituent Assembly, remarked in this context. If I may say so, the document is a lawyer’s dream come true. It throws up a slew of new legal possibilities, giving our capable and resourceful lawyers enough to accomplish.”

“I might, however, want to emphasize that the text of the articles that Dr. Ambedkar has submitted before the House appears to me to be far too weighty like the ponderous tomes of a law manual,” P.R. Deshmukh, another member of the Constituent Assembly, observed. In a paper dealing with the constitution, there is rarely so much padding and verbiage. Perhaps it is difficult for them to write a paper that, in my opinion, should be a socio-political document, a vibrating, throbbing, and life-giving text, rather than a legal handbook. But, alas, that was not to be, and we have been saddled with a mountain of words, words and words that could have been easily removed.”

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