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What is Constitutional Law

July 25, 2022

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This article is written by Vandana Shrivastava, an undergraduate student at the Institute of Law, Nirma University. The article analyses the notion of constitutional law and the principles and functions therein with a primary focus on the Preamble, Fundamental Rights, Directive Principles of State Policy, and the nature and structure of the Constitution.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Whenever a person first learns about the Constitution of India, there is always a statement attached to it- “The Constitution is a living document.” But why is it called so? Any Act or law which is inconsistent with the Constitution becomes invalid. It makes one wonder how the Constitution is so powerful and what makes the Constitution so supreme that anything not in accordance with it holds no value anymore. This article discusses the meaning of the Constitution, its importance from different perspectives and the intricacies associated therewith. It also elaborates upon the fundamental content of the Constitution- the Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Writs, and its nature and structure.

The term “constitution” is a French term and refers to the set of fundamental rules and regulations that govern the functioning of a nation-state or any other organization. A state’s constitution is the supreme law of the land and thus requires higher standards of legitimacy and integrity. It outlines a state’s fundamental principles, administrative structures, procedures, and fundamental rights of individuals while defining the directions for a state’s development.

“Constitutional law” is concerned with the interpretation and implementation of the Constitution and its underlying principles. It forms the basis for individuals’ access to particular fundamental rights, inter alia the right to life, the right to privacy, the freedom to move, and the right to vote. It lays down procedural conditions that must be met before a governmental entity can intervene with an individual’s rights, liberties, or property. Constitutional law also deals with subjects such as judicial review, fundamental duties, and the power to make laws, among other things. The Supreme Court of India has played a prominent role in interpreting the Constitution and the terms used therein and has, thus, contributed immensely towards constitutional law research. This contribution firstly defines the term ‘Constitution’, its scope, nature, and functions in a state. Further, the contribution analyses the principles of the constitution of India, including the preamble, fundamental rights and duties. The contribution also analyses the DPSP from the perspective of socialistic, Gandhian, and other principles, and concludes with an analysis of the structure and nature of the constitution of India.

What is a Constitution

Albert Venn Dicey, a constitutional theorist and a British Whig jurist, interpreted the term “Constitution” as consisting “of all rules which directly or indirectly affect the distribution or the exercise of sovereign power in the state, including all rules which define the members of the sovereign power, all rules which regulate the relations of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.” Thomas M.Cooley interpreted the expression “constitution” as “the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”

Modern constitutions incorporate their fundamental principles, ideologies, and governmental structure to clearly define their idea of democracy. It also confers fundamental rights upon its citizens and the general public within its territorial jurisdiction. A constitution is, thus, the most superior legislation that cannot be altered arbitrarily by conventional legislative reform. The substance and character of a constitution, as well as the manner in which it connects with the legal and political order, differ significantly between countries, and therefore, there is no standard and firm interpretation of a constitution.

Nonetheless, any commonly acknowledged broad definition of a constitution would characterize the term as a collection of fundamental legal regulations that:

Has a binding nature on the states.
Enlist the government structure and functions of the institutions,
Lay down political principles and fundamental rights of a citizen,
are constructed on the pervasive public legitimacy,
Have a rigid nature, and
Enhancing the international norms of a democratic social structure in respect of participation and human rights is a negligible prerequisite.

Scope of Constitutional Law

The function and authority of the institutions within the state as well as the interactions between citizens and the state come under the scope of constitutional law. The law of the constitution must thus be understood within the sociopolitical atmosphere in which it functions, since a constitution is a sentient, evolving organism that, at any given time, will symbolize the political and ethical ideals of the individuals it regulates.

Nature of Constitutional Law

Constitutional laws can be both written and unwritten. Written constitutions, such as the Indian Constitution, act as the supreme law of the land. They are superior to all laws in force in a country at any point of time, so much so that a law which is in derogation of the constitution would be repealed. In the case of unwritten and flexible constitutions, the hierarchy between the constitution and ordinary laws ceases to exist. The most appropriate instance of the same is the Constitution of the United Kingdom. The Parliament of a country has the power to make amendments to the constitution through ordinary laws, empowering ordinary laws with the same status as that of the Constitution.

Functions of the Constitution

It has the authority to proclaim and determine the political community’s boundaries. The political community’s boundaries will encapsulate territorial boundaries, i.e., the state’s geographical borders, as well as its claims to any other territory or extraterritorial rights, and also personal boundaries, i.e., the definition of citizenship. Therefore, a constitution commonly differentiates between individuals who are part of the polity and those who are not.
It can proclaim and characterize the political community’s character and competence. It commonly prescribes the state’s foundational principles as well as the position of the state’s sovereignty. The functions of the different constitutions are mentioned as follows:

The French Constitution stipulates that “France is an indivisible, secular, democratic, and social Republic,” and that “National sovereignty belongs to the people, who exercise it all through their representatives and through referendums.”
The Indian Constitution stipulates in its Preamble, “We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic.”
The Ghana Constitution stipulates that the “sovereignty of Ghana lies with the people of Ghana, in whose name and for whose welfare the powers of government are to be exercised.”

It demonstrates the national community’s identity and values. Constitutions, as nation-building mechanisms, may identify the national flag, national anthem, and other symbolism, as well as make assertions about the nation’s principles, history, and identity.
It defines and declares citizens’ rights and responsibilities, mostly as a part of the fundamental rights. These essentially include the fundamental civil liberties necessary for a free and democratic society. For instance, equal protection of the law, freedom of thought, speech, association, and assembly; freedom of religion, due process of law and freedom from arbitrary arrest. Certain constitutions go far beyond the basic essentials to incorporate social, economic, and cultural rights, as well as minority community-specific collective rights. Some rights, such as the right to be free from torture and physical abuse, may apply to both citizens and non-citizens.
It creates and administers a community’s political institutions, outlining the various government institutions, as well as their composition, authority, and responsibility, and the inter-relation among them. The legislative, executive and judicial institutions of a state are incorporated in almost all constitutions. There may also be a metaphorical head of state or institutions to assure the legitimacy of the political process, for instance, an election commission, and institutions to assure people in power’s accountability and transparency. Institutional provisions commonly contain mechanisms for democratic allocation, amicable transfer of authority, and restraint and removal of individuals who exploit authority or have forfeited the public faith.
It has authority in cases where sovereignty between different tiers of government or sub-state entities is divided or shared. The constitution provides for the allocation of power between provinces, regions, and other sub-state entities. Many constitutions establish federal, quasi-federal, or decentralized systems. These can be geographically demarcated or defined by the cultural or linguistic communities. Geographical demarcation can be seen in federal states like Argentina’s constitution, the Indian constitution, and the Canadian constitution. Cultural or linguistic communities defined can be found in Belgium’s constitution, which formulates autonomous linguistic communities in addition to geographical regions.
It can proclaim a country’s official religious identity and set boundaries across sacred and secular institutions. This is particularly meaningful in countries where religious and national identities are intertwined or where religious law has customarily regulated personal status and the adjudication of conflicts among citizens.
It can constrain states to specific social, economic, or development aspirations. This could, perhaps, take the structure of judicially binding socio-economic rights; politically enforceable directive principles; or other declarations of commitment or purpose.

Legal, political, and societal structures and their intersection within the constitution

Constitutions, as legal, political, and social instruments, exist at the crossroads of legal, political, and societal structures. A constitution “marries power with justice,” ensuring that authority is exercised in a reasonable manner while preserving the rule of law and restraining arbitrariness in the exercise of power. It is the supreme law of the nation, and it establishes the requirements that conventional legislation should achieve.

Generally, the constitution endeavours to embody and mould society in different ways. It could be done by articulating the people’s communal identity and objectives or by proclaiming similar principles and values. These elements are most commonly seen in preambles and introductory pronouncements, but they can also be included in oaths and mottos, as well as on flags and other symbols instituted by the constitution. Other substantive constitutional provisions, such as those outlining socio-economic rights, cultural or linguistic policies, or education, might also fall under these social instruments.

A country’s decision-making structures are specified by the constitution, which recognises the supreme power of the text and distributes authority in a way that contributes to prosperous decision-making. The political elements outline how state institutions, i.e., parliament, executive, courts, head of state, local governments, independent organisations, and other institutions are incorporated, what authorities they have, and how they function.

Need for the constitution and Constitutional Law

Constitutions around the world ensure “the fair and impartial exercise of authority,” as well as “a harmonious and stable society; protection of individual and community rights; and promotion of appropriate resource management and economic growth.” Simply put, a constitution empowers lawful authorities to function in the public interest through the administration of key problems and the prevention of arbitrary power of leaders who otherwise would abuse their position. This is based on the principle of constitutionalism, which governs the legitimacy of government actions and requires the government to abide by the law of the land.

Without implementation and adherence to the law of a state, even the finest constitution cannot achieve all its goals on its own. Nations that have successfully established and maintained constitutional governments have typically been at the cutting edge of scientific and technological advancement, economic dominance, cultural growth, and human well-being. Conversely, nations that have failed to sustain constitutional government have generally struggled or failed in the past in terms of growth potential.

The constitution and constitutional law can be analogised with a basketball game between two teams. A match would hardly be impartial if the team in control of the ball could rewrite the law and choose its referee. One team always wins, while the other will eventually lose or quit playing entirely. Similarly, if rules were made up by the ruling party, faction, or group, and they were unmatched and unchecked by the power of the law, there would emerge a situation of chaos and disorder.

A democratic constitutional system can assume the role of the rules of a game while its protectors, such as a constitutional court of law, serve as the referee. They ensure that everyone has an equal opportunity to participate in the “political game.”

Constitutionalism is the absolute opposite of authoritarianism in this sense. Authoritarianism is a form of government in which the ruling authority is in charge of its laws. Many tyrannical states have existed throughout history that has not been governed by any higher law that imposes limitations on how they rule, such as defending citizens’ fundamental rights or ensuring their accountability to the people. Therefore, authoritarians rule for their own interests or for the benefit of a privileged minority who support the ruling class, rather than for the benefit of all citizens.

People opting for democratic constitutional government are opting out of despotism and the instability that comes with living under rulers who can act at their own will. They’ve decided that certain rights, beliefs, norms, institutions, and procedures are too fundamental to be left to the whims of those in power and that they should be enshrined in a way that makes them enforceable by the government. People in such a society live under a government with universal principles founded on broad public acceptance and are immune from the rulers’ arbitrary conduct.

Indian Constitution : a bird’s eye view

Background

After India gained independence from British colonial rule, the Constitution’s framers, i.e., the Constituent Assembly, aimed to create a sustainable model of governance that would effectively benefit the country while maintaining a people-centric approach. The foresight and creative leadership of the Constitution’s founding fathers have bequeathed upon the country an unparalleled constitution that has stood as a model for the country for the past seven decades. The country owes its democratic system’s achievement to the Indian Constitution’s architecture and the institutional mechanisms imbibed therein.

On November 26th, 1949, the Constituent Assembly of India adopted the Constitution. However, it came into effect on January 26th, 1950. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar, is largely regarded as the Indian Constitution’s architect owing to his immense contributions to the same. The Indian Constitution is a proclamation of the will to create India as a sovereign, socialist, secular, and democratic republic. It is, in essence, a promise to the citizens to provide them with socio-economic and political justice, individual liberty, equality, freedom of thought, expression, belief, religion, and worship; equal justice and opportunity; and to enhance fraternity among all, ensuring the dignity of the individual and the unity of the nation. Dr. B. R. Ambedkar expressed the underlying expectations that underpin the numerous pledges in clear terms:

“Our object in framing the constitution is two-fold: to lay down the form of political democracy and to lay down that our ideal is economic democracy; and also to prescribe that every government, whatever is in power, shall strive to bring about economic democracy….”

The Constitution

The Indian Constitution establishes a framework for political, economic, and social democracy. It emphasises the Indian people’s commitment to declaring, ensuring, and accomplishing numerous national objectives in a free and democratic manner. It is more than a legal document. It is a mechanism that leads the nation toward realising the people’s goals and expectations by adjusting and adapting to changing demands and circumstances. The constitution’s essence is to make India, or Bharat, a Union of States, and to provide the people with equality before the law and equal protection under the law. The Constitution is also attentive to the interests and aspirations of those in a disadvantageous position in society and frames policies aimed at the upliftment of the underprivileged sections.

In both content and spirit, the Indian constitution is peculiar. The following are the key elements of the Indian Constitution:

It is the lengthiest written constitution in the world.
It stipulates a blend of rigidity and flexibility.
It formulates the structure of a cooperative federal system with the features of a unitary system.
It stipulates a parliamentary form of government.
It establishes the judiciary as an independent institution.
It confers single citizenship on its people.
It also stipulates emergency provisions (National Emergency, Financial Emergency, and State Emergency).

Preamble: We The People of India

The Constitution’s Preamble is centred on Pandit Jawaharlal Nehru’s “objective resolution,” which was drafted and introduced by him and adopted by the constituent assembly. The Preamble to the Indian Constitution incorporates and expresses the Constitution’s fundamental values, philosophy, and aspirations. The significance of the Preamble has been summed up eloquently by Pandit Thakur Das Bhargava, a member of the Constituent Assembly:

“The Preamble is the most precious part of the constitution. It is the soul of the constitution. It is the key to the constitution… It is a jewel set in the constitution… It is a proper yardstick with which one can measure the worth of the constitution.”

The Preamble of the Constitution provides an insight into the conscience of the framers and demonstrates the ultimate aim for which the various provisions in the Constitution were created. The following are the functions of the preamble:

It reveals the Constitution’s source.
It specifies the date on which the constitution takes effect.
It outlines the rights and liberties that the Indian people desired for themselves.
It enumerates the salient features of the Constitution.
It establishes the government’s nature.

Preamble and Indian Constitution

The issue of whether or not the preamble is a part of the constitution has been debated in several cases. A judicial interpretation has given clarity to resolve the issue.

Re Berubari Union Case

In the Re Berubari Union Case (1960), the nine-judge bench of the Supreme Court of India deliberated on this issue. The Hon’ble Justice Gajendra Gadkar delivered the judgment, and the Court observed that the preamble is not a part of the constitution. However, it is a key to the mind of the framers of the constitution and reveals their intentions.

Kesavananda Bharti v. State of Kerala

Thereafter, the issue came up before the thirteen-judge constitutional bench of the Supreme Court in Kesavananda Bharti v State of Kerala (1973). The Court held that the Preamble of the Constitution is considered part of the Constitution and it does not lay down a binding obligation or any restriction but is pertinent in the interpretation of statutes and provisions of the Constitution. With regard to amendments, the phrase “amendment of this Constitution” in Article 368 implies that any addition or alteration to any of the Constitution’s provisions made within the wide curvature of the preamble is required to bring out the Constitution’s basic objectives.

Minerva Mills v. Union of India

After the Kesavananda Bharati case, the five-judge constitution bench was constituted in the case of Minerva Mills v. Union of India (1980) to determine whether the Preamble could be amended or not. The Hon’ble Justice Y.V. Chandrachud wrote the majority judgment and observed that any positive amendment in the Preamble can certainly be made. The Preamble crystallizes the notions that serve as the foundation of the Constitution. The Court held that the 42nd Amendment breathes a new breath into constitutional philosophy. By amending the Preamble to include the terms “socialist” and “secular.” It merely expressed what the Constitution already provided. The Preamble can, thus, be amended using the procedure outlined in Article 368 of the Constitution.

S.R. Bommai v. Union of India

In the case of S.R. Bommai v. Union of India (1994), the majority judgment of the nine-judge bench laid down a novel application of the Preamble under the Constitution. The Court concluded that the Preamble identifies the constitution’s basic structure and that any proclamation made under Article 356(1) is subject to judicial review if it violates the constitution’s basic structure. The Supreme Court concluded that a proclamation made under Article 356(1) that contradicts any of the basic qualities enumerated in the Constitution’s Preamble is certain to be declared unlawful.

Fundamental Rights

Part-III of the Constitution of India confers fundamental rights and freedoms to the citizens and also non-citizens of India. The objective of Fundamental Rights is that some basic rights, such as the right to life, liberty, freedom of speech, freedom of faith, and so on, should be regarded as inviolable under all circumstances and that the shifting majority in the legislatures of the country should not have a free hand in interfering with fundamental rights. The fundamental right is often re-called the Magna Carta of India. The Fundamental Rights enshrined in Articles 14 to 32 are classified into six parts:

Right of equality (Article 14–16), with the abolition of untouchability (Article 17) and titles (Article 18)
Right to freedom (Article 19)
Right to livelihood and life with dignity, and right against arbitrary arrest, exploitation, and child labour (Article 21–24)
Right to freedom of religion (Article 25–28)
Cultural and educational rights (Article 29–30)
Right to constitutional remedies (Article 32)

Fundamental Right to Equality

The Right to Equality is paramount in India. It enables all citizens to enjoy equal privileges and opportunities. The objective of this right is to establish a rule of law in which all citizens are treated equally before the law. It has five provisions (Articles 14 – 18) that provide equality before the law or legal protection to all Indian citizens, as well as outlaw discrimination based on religion, race, caste, sex, or place of birth.

Equality Before Law

Article 14 of the Indian Constitution guarantees that all citizens will be equal before the law. It stipulates that everyone will be equally protected by the laws of the state. No individual is above the law. It means that if two persons commit the same crime, both of them will get the same punishment without any discrimination.

No discrimination based on religion, race, caste, sex, or place of birth.

Article 15 of the Constitution prohibits discrimination against citizens based on religion, race, caste, sex, or place of birth. This is essential to promote social equality. Every Indian citizen gets equal access to retailers, restaurants, public entertainment venues, and the usage of wells, tanks, and roadways. The state, on the other hand, has the jurisdiction to make special provisions or exemptions for women and children.

Equal opportunity in public employment

All citizens are entitled to equal opportunity in aspects of employment or appointment to public services under Article 16 of the Constitution. In respect of employment in the public sector, there shall be no discrimination on the grounds of religion, race, caste, sex, place of birth, or residency. Employment will be based on merit. However, the exercise of these rights is subject to some restrictions. Special provisions can be made for the reservation of posts for citizens belonging to Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBCs).

Abolition of Untouchability

Article 17 has rendered demonstrating untouchability in any form a punishable offence. This provision seeks to improve the social status of Indians who have previously been looked down upon and pushed at a distance owing to their caste or profession. However, it is unfortunate that, despite constitutional restrictions, this social evil persists today.

Abolition of Titles

All British titles bestowed on British loyalists during the British Colonial era, such as Sir (Knighthood) or Rai Bahadur, have been abolished since they established artificial distinctions under Article 18. The practice of conferring titles in this way is against the principle of equality before the law. The President of India, on the other hand, can bestow civil and military honours on people who have done distinguished service to the country in many disciplines. Civil awards like the Bharat Ratna, Padma Vibhushan, Padam Bhushan, and Padma Shri are given out, as well as military medals like the Veer Chakra, Paramveer Chakra, and Ashok Chakra.

Fundamental Right to Freedom

A true democracy’s fundamental key feature is freedom. The “Right to Freedom” is a collection of six freedoms that our constitution guarantees to Indian citizens. Article 19 of the Constitution provides for the following six freedoms:

(a) Freedom of speech and expression under Article 19(1)(a);

(b) Freedom to assemble peacefully and without arms under Article 19(1)(b);

(d) Freedom to move freely throughout the territory of India under Article 19(1)(d);

(e) Freedom to reside and settle in any part of India under Article 19(1)(e); and

(f) Freedom to practise any profession or to carry on any occupation, trade or business under Article 19(1)(g).

The purpose of guaranteeing these freedoms is to establish and preserve an environment conducive to democratic functioning. The State, however, is entitled by the Constitution to place certain reasonable constraints on each of them.

The fundamental right to livelihood, against arbitrary arrest, exploitation, and child labour

Right to life

Article 21 of the Indian Constitution provides that no one’s life or personal liberty can be taken away from them except as per the procedure established by law. It assures that no one’s life or personal liberty can be forcibly taken without a judicial order. It ensures that no one can be punished or imprisoned solely on the basis of an authority’s whims. They may only be penalised for breaking the law.

Protection against arrest and detention in certain cases.

Under Article 22 of the Constitution, an arrested person has various rights. According to the constitution, no one can be arrested or held in custody without first being informed of the justification for their detention. They have the right to consult with and be represented by an attorney of their choice. Within twenty-four hours of being arrested, the accused must be brought before the nearest magistrate.

Prohibition of traffic in human beings and forced labour

Under Article 23 of the Constitution, human trafficking and other types of forced labour are prohibited. Both citizens and non-citizens have access to this right. It protects the individual not only against the state but also from private individuals. The state, on the other hand, may impose mandatory service for public purposes such as military service or social service.

Prohibition of employment of children in factories, etc.

Article 24 of the Constitution makes it illegal to employ minors under the age of 14 in any factory, mine, or other hazardous occupation. However, it does not prevent them from working in any non-harmful capacity.

Fundamental Right to practise and propagate religion

India is a multi-religious state. Hindus, Muslims, Sikhs, Christians, and other religious communities also reside in our country. Every person’s freedom of conscience and the right to practice and propagate any religion are guaranteed under Article 25 of the Constitution. It also gives every religious institution the freedom to govern its own religious affairs. Every religious denomination has the legal right to set up and administer religious and charitable organizations. Each religious community is also free to acquire and administer its movable and immovable property for the promotion of its religion. Our Constitution states that no religious education can be offered in any educational institution that is completely supported by the state.

Fundamental Right to establish educational and cultural education (Minority Rights)

India is an enormous country with a multicultural environment, method of writing, and linguistics. People are passionate about their native languages and culture. Our constitution under Article 29 and Article 30 provides the requisite protection to ensure that their culture and language are preserved and promoted. Minorities are permitted under the constitution to establish and manage their educational institutions. It further stipulates that the state would not discriminate against any educational institution that receives financial help because it is administered by a minority group. These rights guarantee that the state will support minorities in the conservation of their language and culture. The state’s ideal is to maintain and perpetuate the country’s multicultural heritage.

Fundamental Right to constitutional Remedies

Fundamental rights empower the citizens of the country and individuals who are not Indian citizens with certain rights which are fundamental to the existence of a person in a democratic society. However, merely conferring a set of rights is insufficient; they need to be safeguarded against any infringement. The Right to Constitutional Remedy ensures that any infringement or encroachment upon fundamental rights is prevented and defended. The Right to Constitutional Remedies, according to Dr Ambedkar, is the Constitution’s “heart and soul.” It allows citizens to approach the High Court or the Supreme Court for the restoration of any fundamental right that has been violated. Thereafter, the designated court might issue an order or instruction to the government on how to enforce these rights.

Under the right to constitutional remedies, five types of writs can be granted under Articles 32 and 226 of the Indian Constitution. The High Court may exercise its jurisdiction under Article 226 of the constitution, while the Supreme Court may exercise jurisdiction under Article 32 of the constitution. The writs are classified into as Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto.

Habeas Corpus

The term “habeas corpus” means “to have the body of.” The court has the authority to summon any person who is being detained for such detention’s legality.

Mandamus

The term “mandamus” literally means “we command.” It is employed by the Court to direct a public official to perform the work required by them under the law. This writ can also be issued against a public body, an inferior court, a corporation, a tribunal, or a government.

Certiorari

The term “certiorari” literally means “to be certified.” A higher court is empowered to review a lower court’s or a government authority’s judgment for judicial review.

Prohibition

This writ is issued by a court to restrict or prohibit the lower courts, tribunals, and other quasi-judicial authorities from acting beyond their legal authority.

Quo Warranto

The term “quo warranto” literally means “by what authority or warrant.” It authorizes the Court to examine the legality of a person’s claim to a public office.

Directive Principle of State Policy

Directive principles express constitutional directives which influence the political organs of the State to secure certain social, political, or economic goals of a “transformative” character. Part IV of the Constitution, ranging from Article 36 to 51 of the Indian Constitution, lays down the Directive Principles of State Policy (DPSPs), which outline the goals and objectives to be pursued by the states in the country. This aspect of the Constitution is drawn from the Irish Constitution. The Indian Constitution’s notion of a welfare state can only be realized if states endeavour to put DPSPs into practice with a strong sense of moral responsibility. The primary goal of implementing the DPSPs is to establish a benchmark of achievement for the legislature and administration, as well as local and other authorities, against which their success or failure can be measured. The DPSP can be classified into three principles: socialist, Gandhian, and liberal.

Socialistic Principles

The DPSPs reflect social principles and direct the state to carry out the following endeavours:

Article 38 – Promote the welfare of society by securing a social order permeated by justice;
Article 39 – Protect the right of an adequate means of livelihood, ensure the equitable distribution of material resources of the community for the common good, prevent of concentration of wealth and means of production, equal pay for equal work for men and women, preserve the health and strength of workers and children against forcible abuse, provide opportunities for the healthy development of the child;

Article 39A – Promote equal justice and ensure free legal aid to the poor;
Article 41– Secure the right to work, educate, and public assistance in cases of unemployment, old age, sickness and disablement;
Article 42 – Formulate provisions for just and humane conditions for work and maternity relief;
Article 43 – Secure a living wage, a decent standard of living, and social and cultural opportunities for all workers;
Article 43A – Take steps to secure the participation of workers in the management of industries;
Article 47– Ensure that the level of nutrition and the standard of living of people improve public health.

Gandhian principles

These principles reflect the programme of ideology propagated by Gandhi throughout the national movement. The DPSP, reflecting Gandhian principles, directs the State to make the following endeavours:

Article 40 – Promotion of village panchayats and endow them with the necessary powers;
Article 43 – Promotion of cottage industries on an individual and cooperative basis;
Article 43B – Promotion of the functioning of cooperative societies;
Article 46 – Promotion of educational and economic interests of SCs, STs and other weaker sections;
Article 47– Prohibition of the consumption of intoxicating drinks and drugs;
Article 48 – Prohibition of the slaughter of cows, calves, and other milch and draught cattle, and to improve their breeds.

Liberal-Intellectual principles

The DPSP reflecting Liberal-Intellectual principles direct the State to make the following endeavours:

Article 44 – Formation of a uniform civil code for all;
Article 45 – Provision of early childhood care until 6 years of age;
Article 48 – Organization of agriculture and animal husbandry on modern scientific lines;
Article 48A – Protection and improvement of the environment and safeguard of forests and wildlife;
Article 49 – Promotion of the monuments, places and objects of artistic or historic interest;
Article 50 – Creation of the principle of the separate judiciary from the executive;
Article 51– Promotion of international peace and security.

Relation between Part III and Part IV of the Constitution

Fundamental Rights are justiciable, but Directive Principles are not. For this reason, the latter is essential. The principles are crucially significant in the nation’s governance. The distinction is made because, while the State could promptly protect political and civil rights under “fundamental rights,” it could only assure economic and social justice through the period as the economy evolved and the transformation of society occurred. Though the latter subset of rights could not be deemed justiciable, the State was nonetheless obligated to do everything possible to take a holistic approach when enacting laws.

Constitutional structure : separation of power

The Indian Constitution contemplates the separation of powers among the state’s organs while also ensuring a harmonious relationship between them. The Constitution’s overriding authority has been made applicable to all state organs. The Legislature, the Executive, and the Judiciary are all creations of the Constitution, and they all derive their existence from it. The Constitution establishes and limits their powers, limits their responsibilities, and governs their interactions with one another and the general public. Each organ has been clearly expressed in terms of purpose, intent, and activity areas in which there is very little space for ambiguity or uncertainty. If there is any uncertainty, it is determined on the anvil of the Constitution, which expressly states that all organs must live harmoniously.

Every organ is accountable to the citizens in one form or another as custodians of the nation’s interests. The Indian Parliament has been given a pre-eminent place in the constitutional structure as the supreme representational and legislative body. The Legislature, on the other hand, must adhere to certain constitutional obligations and operate within the confines of a written constitution. The Legislature is accountable to the citizens via elections; the Executive is accountable to the citizens through the provision that it is collectively responsible to the prevalent House of the Legislature; and, in a sense, the Judiciary is accountable to the citizens because its sole responsibility as the custodian of the citizen’s rights is to defend the Constitution.

Constitutional nature: Federal and Unitary

The question whether the Indian Constitution is federal or unitary has always been a bone of disagreement. As a fusion of federal and unitary characteristics, the Indian constitution is both federal and unitary. According to D.D. Basu, India’s Constitution is neither entirely federal nor unitary, but rather a hybrid of the two. It’s a unique type of union or composite. It is frequently described as quasi-federal. Therefore, we may reasonably conclude that it is predominantly federal with some unitary characteristics.

The history of Indian federalism and India’s centralized structure never ceases to amaze most scholars. The Indian Constitution stands out in terms of distinctiveness because of this unique blend of the two. The Indian constitution was crafted in such a way that it ensured the junction of federal and unitary features. Even though the Indian Constitution does not specifically mention the word “federalism,” it has incorporated federal characteristics such as the separation of powers between the Centre and the States, an independent judiciary, and a written constitution. Despite the countless debates and ideas by several constitutional scholars and jurists contesting the Indian Constitution’s federal structure.

In the case of S.R. Bommai & Ors v. Union of India (1994), the Supreme Court of India concluded that the Indian Constitution, unlike the United States Constitution, is not wholly federal. The Court further observed that the states in the United States were sovereign and had the right to preserve their independent status, making them resilient and eventually leading to the construction of an indestructible union. In India, the Parliament, on the other hand, relinquishes the right to create a new state within the legal framework, downsize an existing state, change the name of an existing state, and even limit executive and legislative power by modifying the constitution.

Federal Features of the Indian Constitution

The distribution of powers between the centre and states
Written Constitution
The rigidity of the Constitution
Supremacy of the Constitution
Independent Judiciary

Unitary Features of the Indian Constitution

A single central all-powerful
Government Flexibility of the Constitution and Administration
Single Citizenship
Integrated judiciary
Emergency Provisions

Frequently Asked Questions (FAQs)

Whether the Indian Constitution a written Constitution?

Yes, the Indian Constitution is a written Constitution, containing 395 Articles and 12 Schedules, and therefore, it fulfills this basic requirement of a federal government. In fact, the Indian Constitution is the most elaborate constitution in the world.

When was the Indian Constitution adopted, and when did it come into effect?

On November 26th, 1949, the Constituent Assembly of India adopted the Constitution. However, it went into effect on the 26th of January, 1950.

Whether the Preamble is a part of the Constitution of India or not?

Yes, the Preamble is part of the constitution. In the Kesavananda Bharati case, the 13-judge bench held it as a part of the Constitution.

Whether the Indian constitution is unitary or federal in nature?

The Indian Constitution is neither wholly unitary nor wholly federal. It is a combination of both, called Quasi-federal.

Conclusion

People strengthen the constitution in the same way that it strengthens them. The architects of the Indian Constitution understood that no matter how beautifully written or thorough a Constitution is, it will be meaningless unless it is implemented and lived by the proper people. It is the prime reflection of the democratic status of India as a country, and therefore, abidance and honor of the Constitution is essential to maintain democracy.

References

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