The constitution of a country is the basic or supreme law which the people given to themselves. Our constitution has adopted the best features of most of the major constitutions of the world as per the needs of the country. The parliamentary system of democracy has been taken from Britain, the concept of federalism from the USA, the idea of directive principles from Ireland, and a few more features from the constitutions of Australia and Canada. Our constitution is federal in structure but with unitary features. It is a lengthy and legalistic document, but reasonably flexible.
Major features of the Indian constitution can be listed as-
1. Popular Sovereignty
2. Rule Of Law
3. Judicial Review
5. Securalism In Indian Constitution
6. Fundamental Rights
7. Directive Principles Of State Policy
9. Judicial Independence
10. Parliamentary System
11. Federal And Unitary Features
12. Lengthy And Legalistic Document
13. Flexibility Of The Constitution
14. Single Citizenship
15. Emergency Provisions
The constitution proclaims the sovereignty of the people in its opening itself. The idea is reaffirmed in several places in the Constitution, particularly in the chapter dealing with elections. Article 326 declares that “the elections to the House of people and the Legislative Assembly of every state shall be on the basis of adult suffrage”. As a result, the Government at the Centre and in the States derive their authority from the people who choose their representatives for Parliament and the State Legislatures at regular intervals. Further, those who wield the executive power of the government are responsible to the legislature and through them to the people. Thus, in the affairs of the State, it is the will of the people that prevails ultimately and not the will of a few selfish individuals. This is the principle of popular sovereignty.
In spite of the ignorance and illiteracy of large sections of the Indian people, the Constitution Assembly adopted the principle of adult franchise with faith in the common man and the ultimate success of democratic rule. The Assembly was of the opinion that democratic government on the basis of adult suffrage would alone “bring enlightenment and promote well-being.”
Free elections are, perhaps, the greatest forum of mass education. The dangers inherent in adult suffrage among illiterate peoples can be mitigated only by the blessings of universal education. In a country like India, the large majority of whose population is illiterate, the attainment of universal education is a goal still a long way off. But this need not necessarily mean that until a certain minimum standard of universal education is realised, the Indian masses are incapable of properly exercising their right of franchise. Illiteracy is not quite the same thing as ignorance. A free election, which ensures free exchange of ideas and free canvassing by contending parties who stand for different programs of social organization for the realisation of the common welfare, offers the best medium for the political education of the illiterate masses. It is this that the constitution guarantees. The constitution makers were not satisfied by merely providing for adult suffrage. They wanted to ensure free elections by creating an independent constitutional authority to be in charge of everything connected with elections. Free election is a reality in India. It ensures for the electors both the freedom of choice and the secrecy of the ballot. The general elections have demonstrated that the ordinary man, in spite of his so-called ignorance, has been able to exercise his robust common sense in electing candidates of his choice. Neither money nor social status nor official position has been powerful enough to make him a convenient tool in the hands of a few is itself guarantee that popular sovereignty will remain a living reality in India despite the fact that most of its people are steeped in ignorance, poverty and social backwardness.
All that the constitution provides is that every adult citizen of India shall have right to vote. This becomes significant when viewed in the background that for quite a long time, the women in many parts of Europe did not enjoy any such right. In addition, under the Government of India Act, 1935, hardly 15 per cent Indian citizens had this right. According to some thinkers this is the boldest step which has been taken by our constitution fathers. This shows that they had full faith in the capacity of the people of India to use their right properly. Some critics of course felt that it was premature to give to the people of India this right when there was poverty and illiteracy and the masses were yet politically not mature. But constitution fathers took a bold step and resolved to go ahead and wanted to make a beginning in this direction right earnestly
Rule Of Law
According to this axiom, people are ruled by law but not by men, that is, the basic truism that no man is infallible. The axiom is vital to democracy.
More important is the meaning that law is the sovereign in democracy. The chief ingredient of law is custom which is nothing but the habitual practices and beliefs of common people over a long number of years. In the final analysis, rule of law means the sovereignty of the common man’s collective wisdom. Apart from this crucial meaning, rule of law means a few more things like (a) there is no room for arbitrariness (b) each individual enjoys some fundamental rights, and (c) the highest judiciary is the final authority in maintaining the sanctity of the law of the land.
It is this spirit that is making us to make various efforts to make Article 14 (all are equal before law and all enjoy equal protection of laws) meaningful, like providing legal assistance to the needy, promotion of Lok Adalats and the venture of the Supreme court known as “public interest litigation”. Also, as per today’s law of the land, any litigant can appeal to the presiding judicial authority to argue the case by himself or seek legal assistance with the help of the judiciary.
The right of the judiciary to review executive acts and legal enactment’s where there they are not in conformity with the established law of the land and its procedures is known as judicial review. Based on this principle the American Supreme court has acquired the power to so interpret the Constitution that it has come to be known as the third chamber of the Constitutions, whereas, in India our Supreme court does not enjoy the power of adding to the Constitution but it can only strike down any, act or any, legislation on the ground that it is contrary to the basic framework of the constitution or violative of the procedure established by law.
As the constitution stands today, the judiciary in India has the right to review legislative enactments and executive acts provided they are brought before the courts except for a few specific acts like the discretionary powers of the governors, the privileges and immunities of the members of the legislatures, etc. In pronouncing its verdict on legislative acts and executive actions the Supreme Court primarily bases itself on what is known as the basic framework of the Constitution-a phrase which has never been spelt out so that others could know the ingredients that go into the making of the basic frame work of the Constitution. However, it is clear from the constitution as it is today that the Parliament has the right to amend the constitution as long as it does not erode the basic frame work of the constitution. Thus, making additions or deleting some Articles of the constitution is the power of the Parliament but not that of the Supreme Court as in the case of the U.S.
Securalism In Indian
India has declared its identity as a “Sovereign, Socialist, Secular Democratic Republic.” The attributes of Socialist and Secular were added in 1976 by the 42nd Amendment to the Constitution. The bulky document does not attempt to define secularism. However, a definition is derived from the fundamental right that proclaims that “The State shall not discriminate against any citizen on grounds of religion, race, caste, sex place of birth or any one of them. “The Indian State has no religion of its own. The fundamental right of speech and freedom also means the right to preaching and proselytising religion. This is made clearer in Articles 25—28, “Subject to public order, mortality and health… all persons are equally entitled to freedom of conscience and the right to profess, practice and propagate religion”. The wearing and carrying of kirpans (swords) shall be deemed to be included in the freedom of the Sikh religion. Every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes, to maintain its own affairs in matters of religion. No person shall be compelled to pay any taxes for promotion of any particular religion. No religious instructions shall be provided in any educational institutions wholly maintained out of the State funds.”
The distinguishing features of a secular democracy as contemplated by the Constitution of India are: (i) that the State will not identify itself with or be controlled by any religion; (ii) that while the State guarantees to everyone the right to profess whatever religion one chooses to follow (which includes also the right to be an intagoiste or any atheist), it will not accord an preferential treatment to any of them; (iii) that no discrimination will be shown by the State against any person on account of his religion or faith; and (iv) that the right of every citizen, subject to any general condition, to enter any office under the state will be equal to that of the fellow citizens. Political equality which entitles any Indian citizen to seek the highest office under the State is the heart and soul of secularism as envisaged by Constitution.
The constitution contains the basic principle that every individual is entitled to enjoy certain rights as a human being and the enjoyment of such rights does not depend upon the will of any majority or minority. No majority has the right to abrogate such rights. In fact, the legitimacy of the majority to rule is derived from the existence of these rights. These rights include all the basic liberties such as freedom of speech, movement and association, equality before law and equal protection of laws, freedom of religious belief and cultural and educational freedoms.
The constitution has classified these rights into seven categories and one of them is the right to constitutional remedies which entitles every aggrieved person to approach even the Supreme Court of India to restore to him any fundamental right that may have been violated. It is, thus, a basic affirmation of the Constitution that the political system that it establishes should provide conditions favourable for the maximum development of the individual’s personality. The framers of the Constitution were conscious of the fact that in the absence of the enjoyment of the above mentioned rights, such development of the personality was impossible and democracy would sound an empty word. Having spent most of their lives under a foreign rule and having fought relentlessly for the enjoyment of these rights by themselves, it was only natural that they should have wanted to embody them in the Constitution they framed for the establishment of a democratic political order. They hoped to build this political order on the firm foundation of the freedom of political competition. The prime importance of these rights is that while the will of the majority decides how these freedoms are to be implemented, the existence of the freedoms themselves is not subject to that will. On the contrary, these freedoms set the conditions under which the will of the majority is to be formed and exercised.
Directive Principles Of State Policy
It is for the first time in India’s Constitution, a chapter on Directive principles of the State Policy has been included. Before it, in the Government of India Act, 1935, there was no Instrument of Instructions for the Governor General, but it was quite different from the present Directives. These Directives are a guideline for the governments, but their violation cannot be challenged in the court of law. According to few critics when the Directive have no legal binding, these are useless. But that is not so. These are manifestation of our aims and aspirations. The government of the day can choose to violate these but if the people take the violation seriously they can throw the government out of power. The greatest force behind these Directives is the will of people. The Directives are guidelines both for the people as well as the government. These save us from duping in the dark. Thus these principles are not mere precepts but a great moral force.
The wall of separation which the fundamental rights erect between the government and the people is indeed one of the greatest and surest safeguards of the life, liberty and the pursuit of happiness of the individual. But conditions of absolute and unhindered growth of private power, like absolute governmental power, are capable of destroying individual freedom. Concentration of private power, mainly in the form of economic controls, in the hands of a few individuals is equally destructive of the dynamic qualities of a democratic society as a dictatorial government could be. In a highly capitalist society, a few giants in the industrial and financial world, who concentrate in themselves the bulk of economic power, can easily subject the rest of the community to the travails of a new feudalistic order. After having provided against the emergence of a totalitarian system through the constitutional guarantees of fundamental rights, the framers turned their attention to deal with the possible future menace of a private capitalist concentration of economic power and to ensure the establishment and sustenance of a society which provided for the diffusion of economic power among the different sections of the people. The methods they sought to provide for the purpose are embodied in the chapter on Directive principles of State Policy.
The State and everyone of its agencies are commended to follow certain fundamental
principles while they frame their policies regarding the various state activity. These principles,
on the one hand, are assurances to the people as to what they can expect from the State
and, on the other, are directives to the Government, Central and State.
Originally Fundamental Duties were not there in the constitution. It was great lacuna of the constitution. Hence the Swaran Singh Government was appointed which recommended 12 Fundamental Duties. However, out of that 10 Fundamental Duties were accepted by the 42nd Amendment of the constitution. But at present one more fundamental duty have been added under 86th Amendment Act, 2002. There are total 11 Fundamental duties altogether. Now in their modified form the Fundamental Duties are as follows:
a) To abide by the constitution and respect the national flag and the national anthem.
b) To cherish the noble ideals which inspired our struggle for freedom.
c) To uphold the sovereignty, unity and integrity of the country.
d) To defend the country and render national service when called on to do so.
e) To promote harmony and the spirit of common brotherhood among all the people of India.
f) To value and preserve the rich heritage of our composite culture.
g) To protect and improve the natural environment includes lakes, rivers and Wildlife and have compassion for living.
h) To develop scientific temper, humanism and “the spirit of inquiry and reform.
i) To safeguard. Public property and abjure violence.
j) To strive to achieve excellence in all spheres of individual and collective life so that the nation makes progress.
k) to provide opportunities for education to his child or ward between the age of six and fourteen years.
Man’s long struggle has been to live under a government of laws, not of men. Equal justice under law has for long been his cherished ideal, a system under which the new law is applicable to all alike. Man has in all ages been striving to escape the regime that dispenses justice according to the political or religious ideology of the litigant or the whim or caprice of those who run the government. As a consequence of this struggle, there was established principle of abiding value, that no judiciary can be impartial unless it is independent. In fact the judicial process ceases to be judicial the moment those who seek to judge cease to be independent of every form of external influence. Hence the importance of judicial independence.
The framers of our Constitution preferred parliamentary system of government. Our infant democracy could ill-afford any confrontation between executive and the legislature if they were separate and independent of each other. The President of India is the constitutional head of the Union Executive, but he exercises the executive power, vested in him, in accordance with the advice of the Union Council of Ministers. The real executive power thus vests with the Council of Ministers with the Prime Minister as the head. The Council of ministers is collectively responsible to the Lok Sabha. The same is true of the relationship between the Governors and the Council of Ministers in the States.
The parliamentary system of government both at the Centre and in the State is based on adult suffrage whereby all citizens of India who are not less than 18 years of age and not otherwise disqualified by the Constitution or any law, have the right to vote. It is a bold political experiment in view of the vastness of the country, its large population, poverty and illiteracy.
Federal And Unitary Features
The word ‘federation’ has not been used anywhere in the Constitution. In fact, India has been described as a Union of States. The provinces and the princely States were not sovereign entities before they joined the federation. The states are not ‘inviolable1 or ‘indestructible’ as in the USA. Parliament can by law change or alter the areas and boundaries of any State. No state has the right to succede from the Union.
But, it has some basic federal features. India has two governments functioning at the national and State levels with a clear cut distribution of powers. Both the State and the Union Government draw their authority from the Constitution. The supremacy of the Republic lies not with either the Union Government or the State Governments but with the Constitution. To uphold the legal supremacy of the Constitution, the power to interpret the constitution has been vested in the judiciary. Thus the Indian Constitution has four federal features: (a) clear division of powers between the two governments; (b) dual system of government; (c) supremacy of the Constitution; and (d) authority of the judiciary to interpret the constitution.
There are some features in our Constitution unlike the U.S.: (a) the right of the Governor to reserve a Bill for Presidential assent; (2) the role and functions of the State Governors; (3) the Emergency provisions of the Constitution regarding proclamation of national emergency, financial emergency and President’s rule; (4) provisions of the Constitution enabling Parliament to legislate for the States; (5) Uniform All-India Services; (6) single and uniform citizenship; and (7) uniform and integrated judicial system. Also, the constitutional schemes of distribution of legislative, administrative and financial powers between the Union and the States has a strong unitary bias, unlike the US where the Federal Government has gained more powers through the interpretation of its Supreme Court.
Lengthy And Legalistic Document
It is the most lengthy and legalistic constitutional document any country has so far adopted. One reason is that the Constitution has drawn from a variety of sources. The other is that the constitution-makers ensured that no element of uncertainty was left. It codifies in detail the relationship between the Union and the States and the State’s interests and contains both justiciable and non-justiciable rights as well as fundamental duties. As the Constitution is not only a legal document but an instrument of social change, it has to be a detailed document in order to ensure that it stands the test of any situation in future. Also, care has been taken to ensure that the Constitution is not subverted or perverted by any future government. There are numerous in-built constitutional safeguards.
There are temporary, transitional and special provisions for the state of Jammu and Kashmir and it also take care of the regional problems in States like Gujarat, Maharashtra, Andhra Pradesh, Sikkim, Assam, Nagaland and Manipur. The legalistic nature of the Constitution is also partly because of heavy borrowings from the Government of India Act of 1935.
Flexibility Of The Constitution
Some eminent constitutionalists are of the view that the constitution is rigid. But, we know that it has been possible to amend the constitution over 80 times. Our constitution is more flexible than the American constitution, which requires ratification of amendments by three-fourths of the States. In our constitution only amending of a few provisions requires ratification of amendments by three fourths of the states. In our constitution only amending of a few provisions requires ratification by half of the State Legislatures. While most of the provisions of the Constitution can be amended by two thirds majority of each of the Houses of Parliament and many of the provisions can be altered or modified by a simple majority. Also, the constitution can be supplemented by simple legislations like the Citizenship Act, National Security Act, the Untouchability Act etc.
Moreover, the scope for the growth of conventions to supplement the constitution makes it more flexible. Conventions govern the privileges and rights of the legislature, the functioning of the cabinet system, the status of the Cabinet Secretariate, etc.
In a federation there is usually double citizenship. A citizen belongs to the State in which he is born and also enjoys the citizenship rights of the Federation, to which his state has joined as a unit. This is on the basic principle that the states in a federation are of course units, but do not at the same time, give up their individual entity. But in India there is single citizenship. Citizens belong to the Indian Union and not to any state.
Provision for single citizenship for the whole of India was perhaps intentional. The constitution fathers did not like that regionalism and other disintegrating tendencies which had already raised their ugly heads and were endangering the very security and integrity of country, should be further encouraged by providing double citizenship. Provision for double citizenship would have naturally stood on the way of emotional and national integration. The people in the State would have thought more in terms of the State than the country as a whole. Single citizenship has undoubtedly forged a sense of unity among the people of India and image of United India is reflected by this provision.
One of the Unique features of the Constitution of India is the way in which situations will be dealt with during emergency. According to emergency provisions when the head of the State is satisfied that it is impossible to run the administration of the country or a part thereof, in accordance with the normal procedure laid down in the Constitution he can declare emergency and take administration of the country or part thereof in his own hands. This emergency can be financial or political. Declaration of emergency has far-reaching effects and its consequences are that with such a declaration fundamental rights are suspended and the courts of law can refuse to entertain petitions for the enforcement of these rights. Federal set up of the country practically turns out to be a unitary one and no bill can be introduced in the legislature without prior permission of the head of the states. The President or Governor is the exclusive authority to decide as to whether there is need and necessity of declaration of such an emergency. In India emergency was declared in 1962, when China invaded India. It was again declared in 1965 and 1971 when Pakistan invaded the country. In 1975, internal emergency was declared in the country, as a result of which censorship of press was imposed. During this period Forty Second Constitution Amendment Act was passed which introduced far-reaching changes in the Constitution. This emergency was lifted only in 1977.
Provisions in the Constitution dealing with declaration of emergency were amended by Constitution Forty-Fourth Amendment Act by which it was ensured that in future it became difficult for any Prime Minister to declare internal emergency. On several occasions the President of India has taken over the administration of states on the plea that there is constitutional break down and administration of the state cannot be run in accordance with the provisions of the constitution. Over the years the salient features of the Indian Constitution have developed clear contours. The federal features of the Constitution have been weakened because certain centralising influence have become more and more compulsive. The Parliamentary executive has become increasingly assertive because one party has dominated the Indian political scene till now with a brief interlude. The chapter on Fundamental Rights has undergone a radical change with the deletion of the “Right to Property”. The role of the judiciary, too, is undergoing changes because of the growing radicalism and needs of social justice. And the Directive Principles, although not justiciable, have almost become as important as the Fundamental Rights. A good number of transitional provisions have been dropped. Finally, the conventions that the country has been evolving are also changing the temper of the constitution. Since all these changes have occurred in less than 50 years, it shows that even an elaborate and complex constitution necessarily calls for changes and adjustments.
Philosphy of Constitution
On January 22, 1947 the Constituent Assembly adopted the Objectives Resolution drafted by Jawaharlal Nehru. The Objectives Resolution contained the fundamental proposi¬tions of the Constitution and set forth the political ideas that should guide its deliberations. The main principles of the resolution were :
• that India is to be an independent, sovereign republic ;
• that it is to be a democratic union with an equal level of self-government in all the
• that all power and the authority of the Union Government and governments of the
constituent parts is derived from the people;
• that the constitution must strive to obtain and guarantee to the people justice based
upon social, economic and political equality, of opportunity and equality before law;
• that there should be freedom of thought, expression, belief, faith, worship, vocation,
association and action;
• that the constitution must provide just rights for minorities, and people from backward and tribal areas, etc. so that they can be equal participants of social, economic and political justice; and
• to frame a constitution which should secure for India, a due place in the community of nations.
The philosophical of a Constitutions consists of the ideals for which the constitution stands and the policies which the Constitution enjoins upon the rulers of the Community to follow. The Constitution of India reflects the impact of our ideology in the following spheres :
(i) Secularism : Secularism is the hallmark of the Indian Constitution. People profess¬ing different religions have the freedom of religious worship of their own choice. All the religions have been treated alike. The fact appreciated in India was that all reli¬gions love humanity and uphold truth. All the social reformers and political leaders of modern Indian have advocated religious tolerance, religious freedom and equal re¬spect for all the religions. This very principle has been adopted in the Constitution of India where all religions enjoy equal respect. However, the word ‘secularism’ was nowhere mentioned in the Constitution as adopted in 1949. The word ‘secularism’ has now been added to the Preamble to the Constitution though the 42nd Amendment passed in 1976.
(ii) Democracy : We have borrowed the modern form of democracy from the West. Under this system, democracy means the periodic responsibilities of the Government to go to the people. For this purpose; elections have been held every five-year to elect a Government by the people. However, democracy covers even the economic and social aspects of life. This aspect of democracy is well-reflected in the Directive Principles of State Policy. They are aimed at human welfare, co-operation, international brotherhood and so on.
(iii) Sarvodaya : Sarvodaya refers to the welfare of all. It is different from the welfare of the majority. It seeks to achieve the welfare of all without exception. It is referred to as Ram Rajya. The concept of Sarvodaya was developed by Mahatma Gandhi Acharya Vinoba Bhave and J.. Narayan under which the material, spiritual, moral and mental development of everyone is sought to be achieved. The Preamble to the Indian Constitution and the Directive Principles of State Policy represent this ideal.
(iv) Socialism : Socialism is not new to India. Vedanta philosophy has socialism in it. The national struggle for freedom had this aim also in view. Jawaharlal Nehru referred to himself as a socialist and republican. Almost all the parties in India profess to pro¬mote democratic socialism. These principles are included in the Directive Principles of State Policy. However, to lay emphasis on this aspect, the word ‘socialism’ was specifically added to the Preamble to the Constitution through the 42nd Amendment.
(v) Humanism -.Humanism is a salient feature of Indian ideology. Indian ideology regards the whole humanity as one big family. It believes in resolving international disputes through mutual negotiations. This is what we find in the Directive Principles of State Policy.
(vi) Decentralization : Decentralization is another aspect of Sarvodaya. Indian has al¬ways practiced decentralization through the Panchayat system. Mahatma Gandhi also advocated decentralization. It is on this account that he is regarded as a philosophical anarchist. We have introduced the Panchayati Raj system in India to achieve the objective of decentralisation. The concept of cottage industries as laid down in the Directive Principles of State Policy also refers to decentralization.
(vii) Liberalism : Liberalism does not refers to the Western concept of liberalism. It refers, in the Indian context, to self government, secularism, nationalism, economic reforms, constitutional approach, representative institutions etc. all these concepts were advocated by the modern Indian leaders. All these elements have been incorin Indian Hnnstitntinn bv virtue of which we want to establish a Welfare
(viii) Mixed Economy : Co-existence is a salient feature of our ideology. Co-existence has manifested itself through a mixed system of economy. In this system we have allowed both the private and public sectors of economy to work simultaneously. Large scale and essential industries have been put in the public sector.
(ix) Gandhism : Gandhism represents an ethical and moral India. Gandhi set a new example of fighting foreign rule through non-violence. He taught the importance of non-violence and truth. He advocated untouchability, cottage industry, prohibition, adult education and the uplift of villages. He wanted a society free of exploitation and decentralized in character. All these gandhian principles have found an honourable place in the Constitution of India.