This article is written by Saumya Saxena, a BBA LLB student at Symbiosis Law School, Noida of Batch 2022. This article discusses the salient features of the Indian Constitution.
According to A.V. Dicey a constitution consists of “all rules which directly or indirectly affect the distribution or the exercise of sovereign power in the state.” The Indian Constitution is the parent of all laws in India, all three pillars of democracy- the Legislature, the Executive and the Judiciary derive its authority from the Constitution.
1. Drawn from different sources
The Indian Constitution is remarkable for many outstanding features which make it different from the other constitutions, even though it has been prepared after “ransacking all the known Constitutions of the world” and most of its provisions are substantially borrowed from others. Although our Constitution is called ‘a bag of borrowings’, the constitution framers do deserve the credit for gathering the best features of each of the existing Constitutions and in modifying them with a view to avoid the faults that have been disclosed in their working and to adapting them to the existing conditions and needs of the country. The chairman of the Drafting committee, Dr. Ambedkar had said in this regard that – “As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of the Constitution.”
Sources of the Indian Constitution
|The Government of India Act, 1935||Basic Structure (Federal scheme, Office of Governor, Judiciary, Public Service Commission, Emergency Provisions, Administrative details).|
|British Constitution||Parliamentary form of government, the idea of single citizenship, Rule of Law, Lawmaking procedure, Writs.|
|United States Constitution||Preamble, Fundamental Rights, Federal structure of government, Electoral college, Separation of powers, Judicial Review, Independence of Judiciary, Impeachment of the President and Removal of Judges.|
|Irish Constitution||Directive Principles of State Policy (Ireland itself borrowed it from Spain).|
|Canadian Constitution||Quasi-federal form of government, Distribution of powers between central and state governments, Residuary powers of the central government.|
|Australian Constitution||Freedom of trade and commerce within the country and between the States, Concurrent List.|
|French Constitution||Ideals of Liberty, Equality and Fraternity in the Preamble.|
|Constitution of Soviet Union (USSR)||Fundamental Duties.|
|Constitution of South Africa||Amendment of the Constitution and Election of the members of Rajya Sabha.|
|Constitution of Germany (Weimar Constitution)||Suspension of Fundamental Rights during Emergency.|
|Japanese Constitution||Procedure established by Law.|
2. World’s Longest Constitution
The Indian Constitution is the most lengthy and detailed handwritten constitution of any sovereign country in the world. The original constitution of India was handwritten by Prem Behari Narain Raizada in a flowing italic style. Originally, it consisted of 395 articles in 22 parts and 8 schedules, but it has been amended from time to time. Currently, it has a preamble, 25 parts with 12 schedules, 448 articles and 103 amendments.
3. More Flexible than Rigid
The Indian Constitution gives the power to the Parliament to modify many of the provisions by a simple majority for general legislation. There are only a few provisions in the Constitution which require ratification by the State Legislatures, that too only by one-half of the States. The remaining provisions of the Constitution may be amended by a special majority of the Union Parliament, i.e. a majority of not less than two-thirds of the members of each House present and voting, which must be the majority of the total membership of the House. The Parliament has also been given the power to supplement the provisions of the Constitution by legislation.
4. Fundamental Rights and Constitutional Remedies
The Indian Constitution guarantees certain Fundamental Rights in Part III such as Right to Equality, Right to particular freedoms, Right against exploitation, Right to freedom of Religion, and so on. All these rights are available against the State, these rights are not absolute and are subject to reasonable restrictions. Originally, Right to property was also a fundamental right but it was eliminated by the 44th amendment and now it is a legal right.
Fundamental Rights are enforceable by any person whose fundamental rights have been infringed by the action of the State. The remedies for the enforcement of fundamental rights are the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto, these are also guaranteed by the Constitution. Any law which infringes the fundamental rights is bound to be declared void by the Supreme Court or the High Court.
5. Fundamental Duties
The 42nd Constitutional Amendment Act, 1976 incorporated fundamental duties under Article 51-A in Part IV-A, upon the recommendations of the Swaran Singh Committee. These duties are applicable to citizens only and there is a moral obligation on the citizens to perform these duties. However, these duties cannot be judicially enforced.
6. Directive Principles of State Policy
These are guidelines to the State to promote the welfare of the people by securing and protecting social order, enumerated in Part IV of the Constitution from Art. 36 to 51. There are non-justiciable in nature i.e. not enforceable by the courts for their violation. However, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Hence, they impose a moral obligation on the state authorities for their application.
7. Independent Judiciary
Our constitution has a single integrated system of Courts for the Union as well as the States which administer both Union and State laws, and the Supreme Court heads the entire system. Under each High Court, there is a hierarchy of other courts which are referred to in the Constitution as ‘subordinate courts’ i.e. courts subordinate to and under the control of the High Court. Another salient feature of our Constitution an independent judiciary having the power of ‘Judicial Review’. Judicial Power of the State exercisable by the Courts under the Constitution as sentinels of Rule of Law is a basic feature of the Constitution.
8. Universal Adult Suffrage
It must be noted that the suffrage in India is much wider than that in England and the United States. In India, every citizen who is above the age of 18 years has the right to vote without any discrimination on the ground of caste, race, religion, sex, literacy etc. Universal adult suffrage removes social inequalities and maintains the principle of political equality to all the citizens.
9. Parliamentary Form of Government
Our Constitution introduced the Parliamentary form of Government at both Union and the States. A primary reason for the choice of this system of government was that the people had a long experience of this system under the Government of India Acts. Although the British form of parliamentary government was adopted, a hereditary ruler at the head could not be appointed, because India had become a ‘Republic’. Therefore, the Parliamentary system was to be headed by an elected President.
India has a Bicameral Legislature with two houses named Lok Sabha and Rajya Sabha. In Parliamentary Form of Government; there is no clear cut separation of powers of Legislative and Executive organs. In India; the head of the government is the Prime Minister.
10. Federal System with Unitary Bias
Another remarkable feature of the Indian Constitution is that it confers upon a federal system the strength of a unitary government. Though normally the system of government is federal, the Constitution enables the federation to transform itself into a unitary State. The Constitution of India provides for the division of powers between the Union and the States. Some of the features which show the federal nature of the constitution are the rigidity of the constitution, written constitution, the bicameral legislature, independent judiciary and supremacy of the constitution. The federal character acquires unitary features whenever an emergency is proclaimed, the normal distribution of powers between the centre and the states undergoes major changes.
11. Single Citizenship
Normally, a citizen of a federal state has dual citizenship as there are two sets of government, but India despite being a federal state follows single citizenship. Constitution of India provides for single and uniform citizenship to every individual in the country. There is no concept of State citizenship as there is no distinction between the citizens of two or more states. No state in India can discriminate any citizen on the basis of his place of birth or residence. Moreover, in India, an individual has the right to move to any part of the country or live anywhere in the territory of India except certain places. Kashmir is an exception to this rule, only the permanent residents of Kashmir can acquire land and property in Kashmir. However, this provision is temporary and will be abolished when Kashmir will be completely integrated into India.
12. Emergency Provisions
The President has been given the power to tackle the unusual situations where the security of any part or whole of India is threatened, to maintain the sovereignty, unity, and integrity of the nation. Whenever an emergency is imposed the Centre enjoys all the power and the States become subordinate. Our Constitution provides emergency provisions for the purpose of protection against any condition where the security of India or any part thereof is threatened by war or external aggression or armed rebellion. Part XVIII of our Constitution contains the emergency provisions for the three different kinds of emergencies: (i) National Emergency, (ii) State Emergency and (iii) Financial Emergency.
13. Social Equality
Part III of the Indian Constitution which contains the Fundamental Rights aims at providing political equality as well as social equality. Apart from the basic fundamental rights, our Constitution prohibits the practice of untouchability in any form and lays down that no citizen shall be denied access to any public place, of the enjoyment of any amenity or privilege, only on the ground of religion, race, caste, sex or place of birth.
14. Special Provisions for Minorities
Our constitution contains special provisions for minorities, Scheduled Castes, Scheduled Tribes and Other Backward Classes. It not only provides reservation of seats for them in the Parliament and the state legislature but also gives them special rights and privileges. Our Constitution provides them with various opportunities under the fundamental rights for their survival. The main purpose of these provisions is to uplift the minorities so that they are at par with the majority and there is no discrimination of any kind among the citizens.
15. Rule of Law
The concept of ‘rule of law’ was borrowed from Britain. It implies that no man is above the law and all individuals are subject to the jurisdiction of the ordinary courts. Following Montesquieu’s approach, in the year 1885, A.V. Dicey on observing the UK model laid down three principles to be arising out of Rule of Law.
- Supremacy of Law;
- Equality before Law;
- Predominance of Legal Spirit.
The Indian Constitution has borrowed the Rule of Law from the British Constitution. Absence of arbitrary power is the first essential of Rule of Law upon which our whole constitutional system is based. Governance must be by rule, and not arbitrary, vague and fanciful. Under our Constitution, the Rule of Law pervades over the entire field of administration and every organ of the state is regulated by Rule of Law. The concept of Rule of Law cannot be upheld in spirit and letter if the instrumentalities of the state are not charged with the duty of discharging their function in a fair and just manner.
16. Official Languages
Indian Constitution has different languages to deal with various institutions, i.e. Language of the Union, Regional Languages, Language of the judiciary and texts of law and special directives. Article 346 of the Indian Constitution recognizes Hindi in Devanāgarī script as the official language of central government India. The Constitution permitted the continuation of use of the English language for official purposes. Article 345 recognizes any language adopted by a state legislature as the official language of that state. Article 347 states that if the President is satisfied that a substantial proportion of the population of a State desires to get recognition of their language throughout the State for any purpose, then he may declare the recognition of that language.