This article has been written by Krutika Rode pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In India, the Constitution is regarded as the supreme law of the land. No authority can be deemed superior to the Constitution. After the attainment of independence, the initial task was to create a constitution to achieve a state of law and establish its recognition in the world. The Indian Constitution is regarded as the most unique constitution in the whole world as it is a combination of several constitutions adopted from different countries; its provisions are adopted from the Government of India Act of 1935, and it was passed by the British Parliament in August 1935. Some of its important features are as follows:

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  • It established a federal form of Indian government.
  • It led to the distribution of powers between the Centre and the States.
  • It also introduced the concept of voting, wherein 10% of the Indian population participated in voting.
  • It also led to the formation of federal courts, which came into force in 1937.
  • It introduced the concept of the Upper House and Lower House, i.e., two chambers within the state and laid down restrictions for their smooth functioning.
  • It also proposed the railways and gave its authority to the federal railways, which were governed by the Governor General of India and they were not answerable to anyone for their actions.

Borrowed features of the Indian Constitution

Some examples of the borrowed features of the Indian Constitution are:

  1. British Constitution: 
  • Parliamentary form of government;
  • Legislative functions;
  • Single citizenship;
  • Bicameral legislature;
  • Cabinet system; and
  • Prerogative writs.
  1. Irish Constitution:
  • Directive Principles of State Policy; and
  • President’s election.
  1. American Constitution:
  • Impeachment of the President;
  • Removal of the Supreme Court and high court judges;
  • Concept of fundamental rights;
  • Article 13, i.e. judicial review;
  • Independent judiciary;
  • Preamble to the Constitution;
  • Functions of the President and the Vice-President; and
  • Electoral college.
  1. Canadian Constitution:
  • Centrifugal form of government where the centre has the most powers; 
  • The centre has the residuary powers;
  • Supreme Court acts as an advisory jurisdiction; and
  • The centre appoints the governors to the states.
  1. Australian Constitution:
  • Independence of trade and commerce; 
  • Article 108, i.e., the joint sitting of both houses; and
  • Concurrent list.
  1. USSR, i.e., the Russian Constitution:
  • Fundamental duties.
  1. German Constitution:
  • Suspension of fundamental rights during emergency.
  1. French Constitution:
  •  Concept of republic.
  1. South African Constitution:
  • Amendment of the Constitution; and
  • Election of the members of the Rajya Sabha.
  1. Japanese Constitution:
  • The concept of “procedure established by the law”.

The chairmanship of Dr. B. R. Ambedkar led to the successful creation of the longest-written constitution in the world. Careful planning, legal opinions, judicial precedents, etc. were kept in mind while making the constitution.

Dr. Ambedkar also stated that it is important to amend the Constitution in light of changing times. When India attained freedom from prolonged British rule, it had its first intention in mind to establish its sense of government and distribute the powers equally to establish justice, equity, and good conscience. Furthermore, becoming a democratic country was the goal to promote growth, opportunity, and well-being for the citizens of the state.

The hierarchy

It can be understood that the authorities that come into action after the Constitution are the legislative, executive, and judiciary. These organs of government are of crucial importance as they help in the functioning of the state, though they have different functions. All these organs keep a close watch on actions taken by one another, and often they go through positive and negative criticism to attain efficient law and order. In simple words, the relationship between these three organs can be understood as:

  1. The legislature proposes the law.
  2. The executive enforces the law.
  3. The judiciary is the watchdog of the law.

The doctrine of separation of powers implies that there should not be a concentration of powers to achieve a ‘zero corruption’ form of government.

The nineteenth-century British politician Lord Acton stated, “Power tends to corrupt, and absolute power corrupts absolutely.” 

If we apply this thought to the twenty-first century, it will exactly fit into today’s scenario. 

If absolute power is enjoyed by anyone, there are high chances of misconduct. Therefore, it is important to have separation of powers but at the same time, there should be vigilance maintained to avoid the misuse of powers.

The Union executive

The Constitution provides a parliamentary form of government, unlike the American Constitution. The essence of the parliamentary form of government is that the head of state is the constitutional head, i.e., the President and the real executive powers are vested in the Council of Ministers. The Prime Minister is regarded as the head of the Council of Ministers. Furthermore, the Council of Ministers is responsible for the House of People. Though executive power is vested in the President, he must always seek aid and advice from the Council of Ministers. The Council of Ministers is elected by the people and the representatives form the legislature.

Therefore, we can derive that even if powers are vested in the executive, the legislature is still taken into consideration.

The President 

Article 52 of the Constitution of India, titled “The President of India,” establishes the office of the President as the head of state of the country. This article explains the constitutional provisions and requirements for the President of India.

According to Article 52, there shall be a President of India, who is the head of state and represents the unity and integrity of the nation. The President is elected by an electoral college consisting of elected members of both houses of Parliament as well as elected members of the legislative assemblies of all the states and Union Territories. The President serves a five-year term and is eligible for re-election.

The President is empowered with various functions and responsibilities under the Constitution. These include:

  1. Executive powers: The President is the head of the executive branch of the government. They appoint the Prime Minister and other ministers on the advice of the Prime Minister. The President also has the power to dissolve the Lok Sabha (lower house of Parliament) and dismiss state governments in certain circumstances.
  2. Legislative powers: The President has a crucial role in the legislative process. They can promulgate ordinances when Parliament is not in session, which have the same force and effect as laws passed by Parliament. The President also gives assent to bills passed by Parliament before they become law.
  3. Judicial powers: The President has limited judicial powers, such as granting pardons, reprieves, and remissions of sentences in certain cases. They also appoint the judges of the Supreme Court and High Courts in consultation with the Chief Justice of India and the respective state governors.
  4. Diplomatic powers: The President is the head of state and represents India in international affairs. They receive foreign dignitaries and ambassadors, negotiate treaties and agreements with other countries, and appoint Indian ambassadors and diplomats abroad.
  5. Emergency powers: In times of national emergency, the President can issue proclamations to suspend certain fundamental rights and impose the President’s rule in states where the constitutional machinery has failed.

The office of the President of India is a symbol of national unity, integrity, and sovereignty. The President upholds the values enshrined in the Constitution and ensures the smooth functioning of the government according to the principles of democracy and rule of law.

Article 53 states that the executory power of the Union shall extend to the matters for which Parliament has the power to make laws and includes the exercise of such rights, authority, and jurisdiction as are execrable by the Government of India under any treaty or agreement. Hence, the powers exercised by the President are co-extensive with the legislature. However, the definition of executive power remains vague and it is not mentioned in the Constitution.

In Rai Sahab Ram Jawaya Kapur and Ors. vs. State of Punjab (1955), even the Supreme Court found it difficult to interpret the meaning of executive power. Therefore, the Court observed that it is impossible to provide an exhaustive enumeration of the kinds and categories of executive functions. Under Article 73 and Article 163, the executive power cannot be kept limited to the administration of laws because it also adheres to government policy, the legislature, law and order, the promotion of social and economic welfare, foreign policy, and the vigilance of the administration of the state.

Article 63 prescribes that the Vice-President of India is elected by the members of both Houses of Parliament in a joint session by secret ballot. The Vice-President is also the ex-officio chairman of the Rajya Sabha. But he cannot vote as he is not a member of the Rajya Sabha. Whenever there is a vacancy in the president’s office, he acts as president until the new president is elected.

The Prime Minister

The Prime Minister is the head of the Council of Ministers, says Article 74 (1).

The leader of the ruling party in Lok Sabha is considered the Prime Minister. Similarly, on the death or resignation of the Prime Minister, the ruling party elects a new leader. Hence, there is no actual role of the President in electing the Prime Minister; it is merely a formality.

Article 78 provides that it shall be the duty of the Prime Minister:

  1. Aid and advise the President in the exercise of his functions: The Prime Minister serves as the chief advisor to the President of India, offering counsel and recommendations on matters of governance and policy.
  2. Furnish information to the President: The Prime Minister is responsible for providing the President with all necessary information relating to the administration of the Union and the proposals for legislation.
  3. Communicate to the President all decisions of the council of ministers: As the head of the Council of Ministers, the Prime Minister is required to communicate to the President all decisions taken by the Council, ensuring that the President is kept informed about the government’s actions and policies.
  4. Countersign orders and other instruments executed by the President: The Prime Minister, along with the appropriate minister, countersigns orders and instruments that require the President’s signature, authenticating and validating these documents.

By fulfilling these duties, the Prime Minister plays a crucial role in assisting the President and ensuring the smooth functioning of the executive branch of the Indian government.

The Parliament

The Parliament of India has three organs the President, the Council of States (the Rajya Sabha), and the House of People (the Lok Sabha). Though the President is not a member of the Parliament, he is an integral part of the Parliament. The President has important functions such as summoning the House of People and giving assent to bills.

Rajya Sabha

It can also be regarded as the Council of States in the Upper House of the Union Parliament. The maximum number of members is limited to 250 in the Rajya Sabha, of whom 12 shall be nominated by the President and the remaining 238 shall be representatives of states and union territories, according to Article 80 (1).

The opposition parties are always part of the Rajya Sabha but in respect of the Money Bill, they can’t participate as the Money Bill can only be presented in the Lok Sabha.

In the Federal Constitution, a second chamber is a necessity and it plays an important role in matters of legislation.

Lok Sabha

It is the most popular house. The members of the Lok Sabha are directly elected by the people. The maximum number of Lok Sabha members should be limited to 550. Article 81 states that not more than 530 are elected by the votes in the states and not more than 20 are elected by the Union Territories. Under Article 331, the President may elect up to two members of the Anglo-Indian community if he feels that the community needs to be adequately represented in the Lok Sabha.

The representatives of states are directly elected based on adult franchise.

Article 326 states that every citizen of India, male or female, who is not less than 18 years of age and is not disqualified on the grounds of non-residence, unsoundness of mind, crime, or corrupt or illegal practice, is entitled to vote at the election of the Lok Sabha.

The judiciary

The Supreme Court is regarded as the guardian of the Constitution. The essence of the federal constitution is the division of powers between the central and state governments. The language of the Constitution is not free from ambiguities; hence, it is likely to be misinterpreted, which would further rise to disputes. Therefore, to maintain the supremacy of the Constitution, there should be an impartial authority to decide disputes between the Centre and the States. As the judiciary is regarded as the interpreter of law, this function is entrusted to the judicial body. The Supreme Court is the highest authority in the hierarchy of courts and the decision made by the Supreme Court is regarded as final. The Supreme Court is also the guardian of the fundamental rights of the people. 

The Supreme Court of India has a Chief Justice and seven other judges. But the Parliament may increase the number of judges by law. Originally, the total number of judges was seven but in 1977, this was increased to 17, excluding the Chief Justice. In 1986, this number   increased to 25, excluding the Chief Justice. Thus, the total number of judges at present is 34, including the Chief Justice.

The President appoints the judges of the Supreme Court. Article 124 (2) states that the Chief Justice of the Supreme Court is appointed by the President with the ‘consultation’ of such judges of the Supreme Court and High Court as he deems necessary for the purpose. 

In S.P. Gupta vs. Union of India and Anr. (1981), this case is popularly known as the Judges Transfer case, and the court unanimously agreed to the meaning of the term ‘consultation’. The court derived the meaning of the word ‘consultation’ from Article 124(2), the same as in Articles 212 and 222 of the Constitution. The only ground on which this decision can be challenged is that it is based on mala fide and irrelevant considerations. This is when the constitutional functionaries expressed an opinion against the appointment.

Articles 124(4) and (5) state the removal of judges, i.e., impeachment:

A president, on the grounds of proven misbehaviour or incapacity, can impeach a judge. The President should address the removal of the judge to both houses of Parliament in the same session. The decision should be supported by the majority.

Conclusion

In a parliamentary form of government, the executive, legislature, and judiciary equally hold importance. Executive and legislative authorities are co-extensive and they are inseparable. In a democratic country, the Rajya Sabha is as important as the Lok Sabha. However, Lok Sabha is directly elected by the citizens and Rajya Sabha consists of the opposition parties. But it is crucial to have balance in both to not vest absolute power in a single ruling party, as it is prone to misuse. Furthermore, it helps to bring out the ambiguity of opinions, which leads to making diverse decisions.

The legislature understands the needs of the people and presents the bill in Parliament for the welfare of the people. When the bill is accepted, it is enforced in the state by the executive body. Lastly, the judiciary punishes people who violate the law. The judiciary also has a special power called judicial review under Article 13. Any law not adhering to the Constitution can be struck down by the Apex Court to maintain the supremacy of the Constitution.

References

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