The Constitution of a country is considered to be the supreme law of the land. The term Constitution may be defined as the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.
The Indian Constitution provides for the supremacy of the constitution, which is the supreme law of the land. It has been held that in India the Constitution is supreme and Parliament and State Legislature must act only within the limits of their respective legislative spheres as demarcated in three legislative lists occurring in Schedule VII to the Constitution but they must observe all other limitations on their powers such as the fundamental rights which they on no account transgress.
It has also been held that the federal nature of the Constitution is also a part of the basic structure of the Constitution and therefore outside the scope of the amending power.
The Constitution of India is also the mother of all laws and any law inconsistent with or in derogation of the Constitution of India shall be void to that extent. The circumstances under which the Constitution of India 1950 was drafted has already been discussed above.
The Constitution of India is the world’s most longest and most detailed Constitution. It caters to the world’s second largest population, which comprises of various cultures, religions and languages.
The Indian Constitution is federal in character and has a strong Center. The most striking feature of the Indian Federation is that unlike other federations, it is a flexible federation in the sense that in times of emergency, it can be transformed into a Unitary Government.
The Constitution of India provides for a Parliamentary type of Government and in this respect resembles the British Constitution.
The Indian Constitution has been described as partly rigid and partly flexible. A flexible constitution is one, which is elastic and is therefore can be changed easily. A rigid Constitution on the other hand is one, which is very difficult to change.
The Indian Constitution stands midway between the extreme rigidity of the Constitution of the U.S.A. and the extreme flexibility of the British Constitution.
The Constitution of India has been described as a federal Constitution. However there is some confusion as whether the Constitution is Federal or Unitary or Quasi-Federal.
A federal Constitution normally has the following characteristics:
- There should be a distribution of Powers between the Central and State Governments.
- The Constitution should be Supreme and neither the Central nor State Government should override its provisions.
- There should be a written Constitution, without which, Supremacy of the Constitution cannot be maintained.
- The Constitution should be a rigid Constitution, which cannot be easily amended.
- There must be an independent judiciary having authority to prevent the Central and State Governments from usurping each other’s powers.
The Indian Constitution provides for a Distinctive Federation. It differs from other Federal Constitutions in the following manner:
a) In India there is only one Constitution, i.e., the Constitution of India 1950. The States (except the State of Jammu and Kashmir) have no right to frame a their own Constitutions. Dr. Ambedkar stated, “The Constitution of the Union and of the States is a single frame from which neither can get out and within which they must work.”
b) The Constitution of India provides for only one citizenship, i.e. Indian Citizenship, unlike other Federal Constitutions that provide for a system of dual citizenship. The Supreme Court has held that India has one common citizenship and every citizen should feel that he is Indian first irrespective of any other basis.
c) In Federal systems there is nominally a dual polity. The Constitution of India maintains a unity in basic matters. There is, a single judiciary, uniformity in fundamental laws and a common All-India Service.
Under the Indian Constitution the State and Union are not rivals. Each is intended to work harmoniously in its own sphere without impediment by the other, with an overriding power of the Union where it is necessary in the public interest. Though under normal conditions the Indian Constitution is federal, in times of emergency it can become unitary.
Constitution is not only regarded as a legal document, but as a political instrument, serving the needs and aspirations of its citizens. Since the framers of the Constitution were fully aware of the problems facing Indian people who were the victims of the colonial rule, they sought a Constitution that would meet the growing needs of our people. The constitution of India has many peculiar features.
The bulkiest or lengthiest constitution of the world
The Indian constitution is one of the bulkiest constitution of the world, comprising of 395 articles, 22 parts and 12 schedules. So far the constitution underwent 105 amendments till October, 2021.
The Constitution of India is the lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed document. Originally (1949), the Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.
Presently, it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules 2. The various amendments carried out since 1951 have deleted about 20 Articles and one Part (VII) and added about 85 Articles, four Parts (IVA, IXA, IXB and XIVA) and four Schedules (9, 10, 11 and 12). No other Constitution in the world has so many Articles and Schedules 3 .
Four factors have contributed to the elephantine size of our Constitution. They are:
- 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 4 .
- Dominance of legal luminaries in the Constituent Assembly. The Constitution contains not only the fundamental principles of governance but also detailed administrative provisions.
Further, those matters which in other modern democratic countries have been left to the ordinary legislation or established political conventions have also been included in the constitutional document itself in India.
Drawn From Various Sources
The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act of 1935. Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World.
The structural part of the Constitution is, to a large extent, derived from the Government of India Act of 1935. The philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions respectively.
The political part of the Constitution (the principle of Cabinet Government and the relations between the executive and the legislature) have been largely drawn from the British Constitution.
The other provisions of the Constitution have been drawn from the constitutions of Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan, and so on.
However, the criticism that the Indian Constitution is a ‘borrowed Constitution’, a ‘patchwork’ and contains nothing new and original is unfair and illogical. This is because, the framers of the Constitution made necessary modifications in the features borrowed from other constitutions for their suitability to the Indian conditions, at the same time avoiding their faults
Rigidity and flexibility
The Indian constitution is combination of rigidity and flexibility, which means some parts of it can be amended by the Parliament by a simple majority, whereas some parts require a two-third majority as well as not less than one-half of the state legislatures.
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. Article 368 provides for two types of amendments:
(a) Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.
(b) Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.
At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.
Parliamentary system of government
The Indian constitution provides for a parliamentary system of government, i.e., the real executive power rests with the council of ministers and the President is only a nominal ruler (Article 74).
The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of cooperation and co ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.
The parliamentary system is also known as the ‘Westminster’ 10 model of government, responsible government and cabinet government. The Constitution establishes the parliamentary system not only at the Centre but also in the states.
The features of parliamentary government in India are:
- Presence of nominal and real executives;
- Majority party rule,
- Collective responsibility of the executive to the legislature,
- Membership of the ministers in the legislature,
- Leadership of the prime minister or the chief minister,
- Dissolution of the lower House (Lok Sabha or Assembly).
Even though the Indian Parliamentary System is largely based on the British pattern, there are some fundamental differences between the two. For example, 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’.
Federal system with a Unitary Bias
The Indian constitution described India as a ‘Union of States’ (Article 1), which implies that Indian federation is not the result of any agreement among the units and the units cannot secede from it.
The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, super-macy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.
However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions, and so on.
Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation.
Hence, 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, ‘federation with a centralising tendency’ by Ivor Jennings, and so on.
The Indian constitution provides an elaborate list of Fundamental Rights to the citizens of India, which cannot be taken away or abridged by any law made by the states (Article 12–35). Similarly, the constitution also provides a list of 11 duties of the citizens, known as the Fundamental Duties (Article 51A).
Part III of the Indian Constitution guarantees six 11 fundamental rights to all the citizens:
(a) Right to Equality (Articles 14–18),
(b) Right to Freedom (Articles 19–22),
(c) Right against Exploitation (Articles 23–24),
(d) Right to Freedom of Religion (Articles 25–28),
(e) Cultural and Educational Rights (Articles 29–30), and
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy. 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. The aggrieved person can directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the restoration of his rights.
However, the 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.
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. The Part IV-A of the Constitution (which consists of only one Article—51-A) specifies the eleven Fundamental Duties viz., to respect the Constitution, national flag and national anthem; to protect the sovereignty, unity and integrity of the country; to promote the spirit of common brotherhood amongst all the people; to preserve the rich heritage of our composite culture and so on.
The fundamental duties serve as a reminder to citizens that while enjoying their rights, they have also to be quite conscious of duties they owe to their country, their society and to their fellow-citizens. However, like the Directive Principles, the duties are also non-justiciable in nature.
Directive Principles of State Policy
The Indian constitution mentions certain Directive Principles of State Policy (Article 36–51) which that government has to keep in mind while formulating new policy.
According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution.
hey are enumerated in Part IV of the 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, that is, they are not enforceable by the courts for their violation. Yet, 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. But, the real force (sanction) behind them is political, that is, public opinion.
In the Minerva Mills case 12 (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.
The constitution makes India a secular state by detaching from religious dogmas (Forty-second Amendment).
The Constitution of India stands for a secular state. Hence, it does not uphold any particular religion as the official religion of the Indian State. The following provisions of the Constitution reveal the secular character of the Indian State:
(a) The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.
(b) The Preamble secures to all citizens of India liberty of belief, faith and worship.
(c) The State shall not deny to any person equality before the law or equal protection of the laws (Article 14).
(d) The State shall not discriminate against any citizen on the ground of religion (Article 15).
(e) Equality of opportunity for all citizens in matters of public employment (Article 16).
(f) All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).
(g) Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26).
(h) No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27).
(i) No religious instruction shall be provided in any educational institution maintained by the State (Article 28).
(j) Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29).
(k) All minorities shall have the right to establish and administer educational institutions of their choice (Article 30).
(l) The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).
The Western concept of secularism connotes a complete separation between the religion (the church) and the state (the politics). This negative concept of secularism is inapplicable in the Indian situation where the society is multi religious.
Hence, the Indian Constitution embodies the positive concept of secularism, i.e., giving equal respect to all religions or protecting all religions equally.
Moreover, the Constitution has also abolished the old system of communal representation 13 , that is, reservation of seats in the legislatures on the basis of religion. However, it provides for the temporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequate representation to them.
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.
The introduction of universal adult franchise by the Constitution-makers was a bold experiment and highly remarkable in view of the vast size of the country, its huge population, high poverty, social inequality and overwhelming illiteracy.
Universal adult franchise makes democracy broad-based, enhances the self-respect and prestige of the common people, upholds the principle of equality, enables minorities to protect their interests and opens up new hopes and vistas for weaker sections.
The constitution provides an independent judiciary (Article 76) which ensures that the government is carried on in accordance with the provisions of the constitution and acts as a guardian of the liberties and fundamental rights of the citizens.
The Indian Constitution not only provides for the legislative, executive and judicial organs of the government (Central and state) but also establishes certain independent bodies.
They are envisaged by the Constitution as the bulwarks of the democratic system of Government in India. These are:
(a) Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India.
(b) Comptroller and Auditor-General of India to audit the accounts of the Central and state governments. He acts as the guardian of public purse and comments on the legality and propriety of government expenditure.
(c) Union Public Service Commission to conduct examinations for recruitment to all-India services 15 and higher Central services and to advise the President on disciplinary matters.
(d) State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters.
The Constitution ensures the independence of these bodies through various provisions like security of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and so on.
The Indian constitution provides a single citizenship for all the people residing different parts of the country and there is no separate citizenship for the states (Article 5–11).
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.
In countries like USA, on the other hand, each person is not only a citizen of USA but also a citizen of the particular state to which he belongs. Thus, he owes allegiance to both and enjoys dual sets of rights—one conferred by the National government and another by the state government.
In India, all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them excepting in few cases like tribal areas, Jammu and Kashmir, and so on.
Despite the constitutional provision for a single citizenship and uniform rights for all the people, India has been witnessing the communal riots, class conflicts, caste wars, linguistic clashes and ethnic disputes. This means that the cherished goal of the Constitution-makers to build an united and integrated Indian nation has not been fully realised.
The Indian constitution provides a bicameral legislatures at centre consisting of Rajya Sabha (Council of States) and Lok Sabha (House of the People) (Article 79).
The constitution vests extraordinary powers, known as Emergency Powers in the President during emergencies out of armed rebellion or external aggression or due to failure of constitutional machinery in the state (Article 352–360).
The Indian Constitution contains eleborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationality behind the incorporation of these provisions is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.
The Constitution envisages three types of emergencies, namely:
(a) National emergency on the ground of war or external aggression or armed rebellion 16 (Article 352);
(b) 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); and
(c) 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. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation of the political system from federal (during normal times) to unitary (during emergency) is a unique feature of the Indian Constitution.
Parties play a critical role in shaping and colouring our political system as their interests and ideas are shaped and coloured by groups within society. The parties are said to receive and express both the active and passive wishes of their supporters.
In any political party, the leadership tends to be somewhat detached from the rank and file, presenting a continuous problem with communication and organisational units within the party. As a result of a federal policy like India’s, where units are based not only on size but also on regional languages and cultures, nation-while organization has to rely on loose reins.
As a result, quite diverse groups can be held together within the party’s confederation, providing both tension and support. Politicians are instrumental in establishing a single political culture in their expanded political activity.
India’s party system has its own peculiarities. Since the 1966 general election, fragmentation and polarization have been quite prominent.
Special Provisions for Minorities
The constitution makes special provisions for minorities, Scheduled castes, Scheduled Tribes, etc. by granting them certain special rights and provisions. Basically those are some of the interesting features of Indian constitution. Moreover, the constitution also has many other features such as, Panchayati Raj, Rule of Law, Provisions for Independent Bodies, etc. which are very unique in nature.
Originally, the Indian Constitution, like any other federal constitution, provided for a dual polity and contained provisions with regard to the organisation and powers of the Centre and the states. Later, the 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government (i.e., local) which is not found in any other Constitution of the world.
The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local governments) by adding a new Part IX 17 and a new Schedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992 gave constitutional. recognition to the municipalities (urban local governments) by adding a new Part IX-A 18 and a new Schedule 12 to the Constitution.