Lengthiest Written Constitution
- Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution.
- The Constitution of India is the lengthiest of all the written constitutions of the world.
- Originally (1949), the Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.
- Presently, after Amendment 101, it consists of a Preamble, about 448 Articles (divided into 25 Parts) and 12 Schedules.
- The various amendments carried out since 1951 have deleted one Part (VII) and added four Parts (IVA, IXA, IXB and XIVA) and four Schedules (9, 10, 11 and 12)
Four factors have contributed to the elephantine size of our Constitution.
- Geographical factors, that is, the vastness of the country and its diversity.
- Historical factors, e.g., the influence of the Government of India Act of 1935, which was bulky.
- Single Constitution for both the Centre and the states except Jammu and Kashmir.
- Dominance of legal luminaries in the Constituent Assembly.
Drawn From Various Sources
- Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World
Blend of Rigidity and Flexibility
- Constitutions are also classified into rigid and flexible.
- A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution.
- A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.
- The Constitution of India is neither rigid nor flexible but a synthesis of both.
Federal System with Unitary Bias
- The Constitution of India establishes a federal system of government.
- However, the Indian Constitution also contains a large number of unitary or non-federal features
- the term ‘Federation’ has nowhere been used in the Constitution.
- the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’,
- ‘quasi-federal’ by K C Wheare,
- ‘bargaining federalism’ by Morris Jones
- ‘co-operative federalism’ by Granville Austin,
Parliamentary Form of Government
- The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government.
- The Indian Parliament is not a sovereign body like the British Parliament.
- Further, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy).
- In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.
Synthesis of Parliamentary Sovereignty and Judicial Supremacy
- The doctrine of sovereignty of Parliament is associated with the British Parliament
- Principle of judicial supremacy with that of the American Supreme Court.
- The scope of judicial review power of the Supreme Court in India is narrower than that of what exists in US
- American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21).
- The Supreme Court, on the one hand, can declare the parliamentary laws as unconstitutional through its power of judicial review.
Integrated and Independent Judiciary
- The Indian Constitution establishes a judicial system that is integrated as well as independent.
- They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.
- They are justiciable in nature, that is, they are enforceable by the courts for their violation.
- Fundamental Rights are not absolute and subject to reasonable restrictions.
- Further, they are not sacrosanct and can be curtailed or repealed by the Parliament through a constitutional amendment act.
- They can also be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
Directive Principles of State Policy
- According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution
- They can be classified into three broad categories- socialistic, Gandhian and liberal–intellectual.
- The directive principles are meant for promoting the ideal of social and economic democracy.
- They seek to establish a ‘welfare state’ in India.
- However, unlike the Fundamental Rights, the directives are non-justiciable in nature
- The original constitution did not provide for the fundamental duties of the citizens.
- These were added during the operation of internal emergency (1975–77) by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee.
- The 86th Constitutional Amendment Act of 2002 added one more fundamental duty.
A Secular State
- The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.
- The Preamble secures to all citizens of India liberty of belief, faith and worship.
- The State shall not deny to any person equality before the law or equal protection of the laws (Article 14).
- The State shall not discriminate against any citizen on the ground of religion (Article 15).
- Equality of opportunity for all citizens in matters of public employment (Article 16).
- All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).
- Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26).
- No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27).
- No religious instruction shall be provided in any educational institution maintained by the State (Article 28).
- Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29).
- All minorities shall have the right to establish and administer educational institutions of their choice (Article 30).
- The State shall endeavor to secure for all the citizens a Uniform Civil Code (Article 44).
- Indian Constitution embodies the positive concept of secularism, i.e., giving equal respect to all religions or protecting all religions equally.
Universal Adult Franchise
- The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies.
- Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on.
- The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
- Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship.
- Election Commission to ensure free and fair elections
- Comptroller and Auditor-General of India to audit the accounts of the Central and state governments.
- Union Public Service Commission
- State Public Service Commission
- National emergency on the ground of war or external aggression or armed rebellion16 (Article 352);
- State emergency (President’s Rule) on the ground of failure of Constitutional machinery in the states (Article 356) or failure to comply with the directions of the Centre (Article 365)
- Financial emergency on the ground of threat to the financial stability or credit of India (Article 360).
- During an emergency, the Central Government becomes all-powerful and the states go into the total control of the centre
- 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government which is not found in any other Constitution of the world.
- 97th Constitutional Amendment Act of 2011 gave a constitutional status and protection to co-operative societies.
- It made the right to form co-operative societies a fundamental right (Article 19).
- It included a new Directive Principle of State Policy on promotion of cooperative societies (Article 43-B).
- It added a new Part IX-B in the Constitution which is entitled as “The Cooperative Societies” (Articles 243-ZH to 243-ZT).
CRITICISM OF THE CONSTITUTION
- A Borrowed Constitution
- A Carbon Copy of the 1935 Act
- Un-Indian or Anti-Indian
- An Un-Gandhian Constitution
- Elephantine Size
- Paradise of the Lawyers
NOTES AND REFERENCES
- About 250 provisions of the 1935 Act have been included in the Constitution.
- 1909, 1919, and 1935 Acts provided for communal representation
- USA gave franchise to women in 1920, Britain in 1928, USSR (now Russia) in 1936, France in 1945, Italy in 1948 and Switzerland in 1971.
- In 1963, IFS was created and it came into existence in 1966.