This article has been written by Subodh Asthana, currently studying in the 2nd year of Hidayatullah National Law University. The author in this article discussed the significant features of the Indian Constitution.
Introduction
The constitution is the supreme law of each and every country. Indian Constitution is considered to be one of the longest constitutions in the world. It is the duty of each and every state to enact constitution by which a country will be governed. It took around 2 years 11 months and 18 days to complete the world’s longest constitution. Some scholars even say that it is a heavily borrowed document. Some of the provisions include Directive Principles of State Policy, Fundamental Rights and Duties of an individual. It has at present 448 articles, which is divided into 25 parts and also contains 12 schedules. However, there are multiple features of constitution mainly a secular state, federalism, parliamentary government, fundamental rights and many more of the provisions which have been amended by the government under its power of amendment conferred in Article 368.
Historical Background
Indian Constitution was a result of collective efforts of the Constituent Assembly which was formed by the taking into consideration people’s representation. The present Constitution was a result of Brow’s Sweat of the framers of the constituent assembly which was formed on 9th December 1946. It was fully prepared on 26th November 1949 and was accepted by all member of the constituent assembly on 24th January 1950. Although it is said that many of the provisions of the constitution are borrowed, but then also, it is regarded as the foremost and lofty law of the country. Sachin Anand Sinha was the first interim chairman of the Constituent Assembly who was later replaced by Dr Rajendra Prasad.
MN Roy was the first person in 1934 to say that India must adopt its own constitution. During the drafting of the Indian Constitution, 13 committees were formed out of which 8 were the significant committees’ viz. Drafting Committee, Union Powers Committee, Union Constitution Committee, Provincial Constitution Committee, Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, Rules of Procedure Committee, States Committee, Steering Committee.
B.N. Rau was also appointed as the constitutional adviser to the constitution. He was the first person to introduce a new draft of the Indian Constitution. Dr B.R. Ambedkar is said to the father of the Indian Constitution and was also the Chairman of the Drafting Committee. Thereafter the consent of all the members of Constituent Assembly, Indian constitution was fully adopted by the country and it came into force on 26th January 1950. Therefore, it was not easy for the Constituent Assembly to enact Constitution.
Hallmarks of the Indian Constitution
Indian Constitution is a well-recognised law document in various countries and is appreciated by multiple Law scholars. According to Granville Austin, “Indian Constitution is the first and foremost social document”. Some features of the Indian Constitution have been discussed below:
Extensive Constitution
Indian constitution is a very wide and extensive constitution as the drafters of the constitution have tried to cover all the significant provisions required for the smooth governance of the country. In the original draft, the constitution consisted of 395 articles, 8 schedules and 22 parts which make it lengthy constitution. Indian Constitution is pervasive in nature as compared to other constitution of different countries. American Constitution only consisted of 7 articles, Australian Constitution also had 128 articles as a whole, and the Canadian Constitution had 147 Articles.
The extraordinary bulk and such extension were due to the mindset of framers as they didn’t want any represented government to govern the citizens of the country under despotism. The reason as to why the United States of America has a brief constitution is because it follows “Coming together federal system”, therefore all the other states have their own laws. The centre is not as powerful as in India. The constitutional framers don’t want any lacunae to be left, so they want to prevent the centre from exercising any arbitrary power which will defeat the purpose of a well-formed state.
There are even more countries like the UK who doesn’t have their written constitution. Therefore it bases its rules and laws on Acts of parliaments, judicial pronouncements and various conventions, but sometimes this system may create a chaotic situation as to which provision in a Constitution will be given superiority. The present Indian Constitution has 448 articles after more than 100 amendments by the parliament. Thus, making it the most lengthy and the bulkiest constitution.
Pinched from various radix
Indian Constitution is also said to be one of the heavily borrowed constitutions. Constituent Assembly has referred to many different constitutions and then enacted the Indian Constitution as they don’t want to leave any scope of ambiguity.
The main source of the Indian constitution is known to be the Government of India Act, 1935. It borrowed federal scheme, basic structure, emergency provisions, administrative details from Government of Act, emergency provisions to be enjoyed by union and suspension of fundamental rights from Germany, Parliamentary form from UK, Federal form from Canada, Concurrent Lists from Canada, directive Principle of State Policy from Ireland, Fundamental Duties from Soviet Union, Procedure of amendment from South Africa, Joint Sitting of Houses under article 108 from Australia, Ideals of Liberty, equality and fraternity from France, provisions of President, Legislation, Citizenship, writs and rule of law from UK and Fundamental rights, Independent Judiciary, Judicial Review and impeachment process from United States of America.
Quasi Federal Constitution
It is a moot point whether the Indian Constitution is in federal or in the unitary form. Some scholars say that it is a mixture of both elements. It is the perfect combination of both. According to KC Wheare, “Indian Constitution is quasi-federal” and according to DD Basu “it is neither unitary nor federal”. There are some provisions where it commands the centre to work in coordination with the different states, but there are specific provisions where it places centre as superior to states.
Federal Nature of the constitution means the nature of the constitution, which is followed by the United States of America. Some federal features of the constitution are where in the cases where State’s consent is needed for amendment and the three types of lists which give powers to the state. The authority has been given to states to make its laws on education, police, taxation system etc. The power given to the Panchayati Raj system is in itself the federal nature of the constitution. The Constitution is also unitary in nature it is the unitary nature that binds all the states.
The unitary nature is a sovereign form because the decision of the centre will be binding on all the states. Article 1 of the Indian Constitution itself states that India is a union of states. Article 2 and 3 gives power to the centre to make laws and redraw and abolish the political boundaries of the country. Centre has the upper hand in cases to legislate on Concurrent matters of the list. Therefore it is both unitary and federal in nature.
Flexible and rigid at some provisions
Indian Constitution is flexible and rigid at some provisions, it strikes a balance between the two because in some rigidity and in some cases, flexibility is strictly required. The rigidity and flexibility could be witnessed in the cases of the amendment. The Parliament can change or adjust a considerable lot of the laws of the Constitution by a basic lion’s share as is required for standard enactments. For example, the Parliament can manage the annulment or formation of Legislative Councils.
Further, the Parliament can change the name of limits, zones and so on of States through the basic greater part; and these progressions don’t have to do by means of a Constitutional Amendment Bill. Parliament can correct other significant pieces of the Constitution with extraordinary greater part (a more substantial portion of at the very least 2/3 of the individuals from each House present lion’s share of them casting a ballot) as referenced in Article 368.
This procedure can be semi-inflexible, and models incorporate those alterations required for consideration/prohibition of fundamental unique right, exceptional arrangements for SC/ST, uncommon mechanisms for individual districts and so forth. Therefore it is both rigid and flexible in both ways.
Independent Judiciary
The Indian Judiciary is not at all dependent on any organ of the constitution. It is free and from government interference. No organ of government cannot interfere in any judicial functioning of the country. The Judiciary of the country is given a free hand in appointing various persons, judges and all the staffs required in its proper functioning. The appointment and impeachment of judges by the President, in itself, shows that judiciary is autonomous. No organ of government can hinder the judicial process.
Protection to citizens
The Indian constitution being the supreme law of the country commands to its citizens. The courts can ensure and shield the fundamental rights if somebody’s rights are damaged. Since the Fundamental Rights are vital for a good life and for the full improvement of human identity. Both the Supreme Court under Article 32 and the High Courts under Article 226 can issue important writs for a reason. At the point when a resident feels that his Fundamental Rights have been abused, he can move the court for redressal.
The courts can implement Fundamental Rights by issuing these writs against any expert of the State. The Indian Constitution sets out that any demonstration of the official or of the lawmaking body which disregards Fundamental Rights will be void, and the courts are engaged to announce it as void. The Constitution of India has made the legal executive as “the defender and underwriter of Fundamental Rights”.
And, the Constitutional right is the “heart and soul” of the Constitution as it can just make Fundamental Rights successful. In any case, the privilege to move the court for assurance of Fundamental Rights might be suspended amid a crisis aside from those rights given by Article 20 and Article 21.
Safeguards to ethnic minorities and communities
Articles 29 and 30 of the Constitution of India give security only to the cultural and educational rights of the minorities. The minimal notes to those Articles read as ‘Security of interests of minorities’ and ‘Right of minorities and set up and control the educational foundations’. It would, hence, be clear that these Articles are proposed to ensure the unique position of phonetic, religious and cultural minorities.
A conjoint perusing of these two Articles would candidly demonstrate that the single item which the Constituent Assembly had as the main priority in incorporating these two Articles in Part III was to bear to the religious and etymological minorities an assurance for the security of their cultural and educational rights. The heading “Cultural and Educational Rights” under which these two articles are recorded must be perused in the light of the particular arrangements contained in the Articles themselves.
These two Articles unveil the tension of the Indian vote based system to guarantee to the religious and semantic minorities that their language, content or culture would get supreme assurance. The language, content or culture of any community speaks to the identity of the association of their community and gives that particular ethnic group its very own feeling character. This is why the Constitution producers were keen and restless that the minorities, etymological or religious groups and rights of the community were never compromised, it has to be ensured by the appropriate government that all the rights, culture and practices of a minority community are protected at all costs.
In Article 29 any segment of the citizens living in the region of India or any part thereof having a distinct language, content or culture of its own, have been given the privilege to promote their religious interests. In Article 30, minorities dependent on religion or language have been allowed the opportunity to build up and manage educational foundations of their decision.
By the 44th Amendment in the Constitution, another arrangement concerning the mandatory obtaining of the property of the minority organisation has been embedded in Article 30 itself. Apart from that, the two Articles are bury related as in the last might be used so as to satisfy the goals given in the previous.
From these arrangements, it is seen that under the Constitution of India, the State is under the duty to permit most extreme satisfaction with respect to minority rights and assurance of their interests. In any case, it has an additional obligation to guarantee their cooperation in public activity with the goal that the interests of minority interests may not breed the possibility of division. With this view, it might be said that the Constitution stretches out full security to the areas of natives who have distinct language, content or culture to ration their personality by setting up the educational foundation of their own decision and will.
Conclusion
Constitution of India is a complete blend of all the provisions, and thus the provisions and articles in itself make it the apex law of the state. The soul of the Constituent Assembly in implementing and interpreting any article of the constitution must always be considered. The framers of the constitution have tried to incorporate the significant provisions in the constitution so that there is no scope for ambiguity pertaining as to how governance would take place in a country and therefore it is the feature of Indian Constitution which in itself makes it a complete and a comprehensive document of the country.
