What is a Constitution? Understanding Its Importance and Features
Introduction: What is a Constitution?
A constitution is an essential collection of rules and guidelines that specify the composition, authority, and responsibilities of a government. As the highest law of the nation, it establishes the foundation for government and makes sure that the rights and obligations of the state and its inhabitants are well-defined. A nation's constitution, whether it be a written document or an unwritten set of customs, is essential to its efficient operation.
What is the Purpose of a Constitution?
INTRODUCTION
The Constitution serves as the fundamental legal document that outlines the principles, structures, and functions of a nation's government.
In essence, a constitution is indispensable to the functioning of a modern democratic society, providing the legal and institutional foundations for governance, protecting individual rights and liberties, promoting stability and prosperity, and fostering national unity and identity.
CONSTITUTION: FUNDAMENTAL LAW OF LAND
A Constitution serves as the supreme law of the land, providing a framework for governance, defining the rights and responsibilities of citizens, and establishing the relationships between different branches of government.
The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution.
It is on the basis of the Constitution all other laws are made and enforced. It not only defines the framework of the basic political principles, but also establishes the basic structure and functions of government, including the division of powers between different branches (such as the executive, legislative, and judicial branches) and the mechanisms for decision-making and governance.
By providing a clear framework for governance, a constitution helps ensure stability, predictability, and accountability in the political system.
CONSTITUTION AND CONSTITUTIONALISM
A Constitution is the fundamental law of the country which along with defining the framework of the basic political principles, also establishes what the different government institutions should do in terms of procedure, powers and duties.
Whereas, Constitutionalism as a political philosophy means that government actions must be in accordance with the provisions of the Constitution.
K.C. Wheare defined it as government according to rule as opposed to arbitrary government.
Whereas, Constitutionalism The concept of ordains limited government and rule of law as opposed to an arbitrary rule of authoritarian/totalitarian State. It establishes checks on governmental power and ensures individual liberty & freedom.
The idea of constitutionalism implies that a Constitutional government should necessarily be a democratic government i.e.. legislatures are accountable to the electorate for their policies.
The idea of Constitutionalism pervades throughout the Indian Constitution. Some of the provisions of Indian Constitution which show the presence of constitutionalism are as under:
Preamble
Rule of Law
Separation of Power
Fundamental Rights
Directive Principles of State Policy
Independence of judiciary and judicial review of The idea Constitution and constitutionalism mean different things but they are closely interrelated.
A country can have a constitution but not necessarily constitutionalism.
For example, a country where a dictator word is law can be said to have a constitution but not constitutionalism. Constitutionalism is antithesis of arbitrary power and connotes in essence limited government.
The Constitution contains symbols, values, ideals and beliefs of the country whereas Constitutionalism expresses philosophy of the Constitution.
MAKING OF INDIAN CONSTITUTION
Drafting Body: Constituent Assembly set up under Cabinet Mission Plan of 1946.
Representation in the Constituent Assembly: Total 389 members. Out of which:
Province: 296 members representing British India provinces.
Out of 296; 292 members were drawn from 11 British India provinces and 4 from Chief Commissioner's Provinces.
States: 93 members to be nominated by the rulers of the princely states.
Each Province and each princely state or group of states were allotted seats proportional to their respective population.
Later, the strength of the Assembly was reduced to 299 (229 representing the
provinces and 70 representing the States) following withdrawal of the Muslim league members after the partition of the country.
Constituent Assembly First Met on: 26th November, 1946; now observed as Constitution day.
First Meeting of the Assembly: December 9, 1946.
Provisional President of Assembly: Dr. Sachhidannand Sinha, the oldest member of the Assembly.
Permanent President of the Assembly: On December 11, 1946 the Assembly elected Dr. Rajendra Prasad as its permanent Chairman.
Objective Resolution
Moved by Jawaharlal Nehru on 13th December, 1946.
It defined the aims of the Assembly and laid down the fundamentals and philosophy of the Constitutional structure.
Resolution adopted by the Constituent Assembly on January 22, 1947.
Draft of the Constitution
The Drafting Committee formed on August 29, 1947 under the Chairmanship of Dr. B.R. Ambedkar.
The draft constitution was published in January, 1948 and after discussing proposed amendments, the constituent Assembly finally adopted the same on November 26, 1949 and was signed by the President of the Assembly.
Major part of the Constitution came into force on January 26, 1950.
However, the provisions relating to Citizenship, Elections, Provisional parliament and temporary and transitional provision came into force with immediate effect viz. from November 26, 1949.
Final Session of Constituent Assembly:
Held on 22nd January, 1950 where the house elected Dr. Rajendra Prasad as the first President of the Republic of India.
AIMS AND OBJECTIVES OF INDIAN CONSTITUTION
The aims and objectives of the Indian constitution were primarily outlined in the objective Resolution and were also incorporated in the Preamble of Indian Constitution.
As per the resolution and the Preamble, the Constitution of India has been adopted to achieve the following objectives:
To proclaim India as an Independent, sovereign and republic.
To establish a democratic Union with an equal level of self government for all the constituent parts.
To establish a system of governance where all power and authority of the
union government and governments of the constituent parts are derived from the people of India.
To guarantee and secure to all people of India:
Justice-Social, Economic and Political.
Equality of status, of opportunity and before law.
Freedom of thought, expression, belief, faith, worship, vocation association and action.
Adequate safeguards for minorities, backward classes and tribal areas.
To maintain the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and law of civilized nations.
To secure for India its rightful and honored place in the world.
To contribute to the promotion of world peace and the welfare of mankind.
NATURE OF THE INDIAN CONSTITUTION
INTRODUCTION
The nature of the Indian Constitution is multifaceted, embodying a unique blend of democratic principles, federalism, secularism, and social justice. It reflects the aspirations, values, and collective wisdom of the Indian people, while also drawing inspiration from various sources, including the constitutions of other nations and historical struggles for independence and social reform. In essence, the nature of the Indian Constitution is characterized by its adaptability, resilience, and commitment to fostering a just, inclusive, and progressive society.
PRINCIPLES OF UNITARY AND FEDERAL GOVERNANCE
On the basis of division of power between the central and regional/ local authorities, political systems can be classified as unitary and federal systems of governance.
Unitary System
It is the form of state governance where the powers of state are vested in a centralized authority which may or may not devolve power to the regional/provincial level.
A unitary state has the following key features:
Centralisation of Power: In the unitary system, all powers- legislative, executive and judicial are vested in a central authority.
Form of Government: The central authority may be a republic or a monarchy.
Separation of Power
There may be separation of power between the three organs of the government at the central level.
However, there is no division of power between the centre and the geographical/regional/ local sub-units which are often called provinces.
But the aforesaid non-sharing of power doesn't imply that the sub-units do not have any power. Rather, the central government can 'devolve' certain power to the lower levels if it finds it difficult to administer the entire state by itself.
Non-permanent Power of the Provinces
The power devolved by the center to the sub-units at the local or regional level is not permanent and can be revoked by the centre whenever deemed appropriate by it.
In other words, the sub-units do not derive their powers from the constitution but from the legislative enactments of the centre.
Amendability of the Constitution
Since the sovereign power is undivided in the unitary system, the constitution in a unitary system is not rigid in nature.
The power to amend the constitution is vested with the central authority (sometimes with the people).
The United Kingdom, France, Scotland etc., are some of the examples of unitary systems of governance.
Federal System of Governance
It is the system of governance in which there is sharing of power between the centre and the provinces. A federal state has the following key features:
Division of Power
In a federation, power is divided between a central authority and various constituent units of the country. Generally, a federation has two levels of government.
First is the central/federal government which is formed for the entire country and is responsible for subjects of common national interest.
Second are Provincial/State Governments which are formed to regulate the territorial administration of respective provinces.
This division and sharing of power between the central and the state governments is the core feature of federalism and is achieved by:
Either by specifying the subjects on which the federal government has exclusive jurisdiction and the keeping the residuary powers with the states (e.g. in the United States), or
By specifying the subjects allotted to both the centre & states and giving the residuary powers to the centre (e.g. in India, Canada and Belgium).
Written Constitution
Generally, a federal system envisages a written Constitution to give effect to this division of power and to specify the areas over which the centre and states have their respective jurisdiction.
Both the centre and the states derive their powers from the constitution. Also, in a
federal set up, the constitution is supreme and powers of the center and the states are subordinate to the constitution.
Rigid Constitution: Given the supremacy of
the constitution, a federation provides for a rigid constitution which cannot be altered unilaterally either by the centre or by the states.
Independent Judiciary: The supremacy
of the constitution makes it necessary that there should be an independent and impartial judiciary in order to interpret the constitution and to decide whether the governments are operating within their respective constitutional domains.
Difference between Unitary and Federal forms of Government
Sources of Power
o Inaunitary system, the central government is the primary authority of power which may devolve power to the constituent units in cases of need. Therefore, in a unitary system, the central government and not the Constitution is the source of power for local/regional units.
o In a federal system, the constituent units enjoy well defined powers of their own, which is not delegated to them by the central government but is inherent to thembyvirtueofaconstitution. Therefore, in a federation, the Constitution is the source of the power for the constituent units.
Nature of Power
In a unitary system, the power devolved to the local/regional units is temporary in nature and can be revoked by the central authority without the consent of such units.
In a federal system, the constituent units enjoy inherent and permanent powers which are guaranteed by the Constitution and cannot be taken away/altered by the federal government on its whims and fancies.
Autonomy
o In a unitary system, the regional/local units have limited functional autonomy.
However, in a federal system, the constituent units enjoy greater functional autonomy and represent the ideas of "self rule" & "power sharing".
Efficiency of Administration vis-a-vis Diversity
o In a unitary system, a territory is demarcated into smaller units primarily for the purpose of effective administration of State.
However, a federal system focuses more on diversity and pluralism when units are divided or come together for the purpose of governance.
Indian Polity Whether Federal or Unitary
The Indian Constitution incorporates elements of both unitary and federal governance, although it predominantly leans towards federalism.
Article 1 of the Constitution of India provides that "India, that is Bharat shall be a Union of States." In fact the word "Federation" has nowhere been used in the Constitution.
Moreover, the phrase "Union of States" implies that "Indian federation is not the result of an agreement between the center and he states and that no state has right to secede from the federation.
This essentially shows that the Indian Constitution is a unique blend of federal and unitary features.
Federal Features of Indian Constitution
Division of Powers
The Seventh Schedule ofthe Constitution delineates the subjects on which each level of government can legislate.
The Union government can legislate on the Union List which includes subjects of national importance such as defense,
foreign affairs, and currency, while the state government can legislate on the State List that contains subjects of local or regional significance like health, and police.
Both the Union and State Governments can make laws on the subjects enumerated in the concurrent list that contains subjects such as Marriage, Succession, Trade Union, Education, Forest etc. However, the Central law prevails in case of a conflict between the Central and state law.
Written and Rigid Constitution
In India, we have a written Constitution, which is the supreme law of the land. Both the Central and State governments derive their powers from it.
The process of amendments to the Constitution is very rigid as compared to ordinary laws.
Furthermore, Amendments pertaining to those parts of the Constitution, which define the relationship between the Union and States are required to be passed by a two-third majority of the members present and voting in the Parliament and be ratified by half of the states of the Indian Union.
Independent and Impartial Judiciary
The Supreme Court of India acts as the independent and impartial interpreter of the Constitution and the apex arbiter of disputes between two or more states under its original jurisdiction under Article 131 of the Constitution.
Any law or order which contravenes any provision of the Constitution can be declared null and void by the Supreme Court under Article 32 and High Court under Article 226 of the Constitution.
Bicameralism
The Indian Indian Parliament is bicameral. It has two houses, i.e., the lower house-the house of people or the Lok Sabha and the upper house- the council of states or the Rajya Sabha.
The Lok Sabha has representatives elected directly by the people and the Rajya Sabha consists of representatives elected indirectly ie., by the members of state legislatures and the members nominated by the President.
The Rajya Sabha is required to maintain the federal equilibrium by protecting the interests of the states against the undue interference of the Centre.
Unitary Features of Indian Constitution
Despite the aforesaid federal features, the Indian Constitution also has an unmistakable unitary tendency.
Following features of the Indian Constitution illustrate its unitary character:
Absence of the word "Federal" or "Federation"
Article 1 of the Constitution of India provides that "India, that is Bharat shall be a Union of States." In fact the word "Federation" has nowhere been used in the Constitution.
Moreover, the phrase "Union of States" implies that "Indian federation is not the result of an agreement between the center and the states and that no state has right to secede from the federation.
This shows a conspicuous attempt on part of the constitution makers to keep India unitary in spirit.
Single Constitution: Both the Union
and state governments derive their authority from the same Constitution. This reflects a unitary characteristic, as the Constitution establishes the fundamental framework of governance for both the Union and the states.
Single Citizenship: Unlike other federations (e.g. USA) Indian Constitution does not provide for dual citizenship. Rather, it provides for single citizenship in India.
Residuary Powers: The residuary powers, ie., powers not explicitly assigned
to either the Union or the states, are vested with the Union government. This ensures that matters not specifically enumerated in the Constitution fall under the purview of the central authority, aligning with a unitary principle.
Strong Centre
The Centre has large jurisdiction and stronger political and economic position as compared to the states. This allows the Centre to make necessary inroads into the jurisdiction of the provincial governments.
The Unitary Territories are adminis-tered by the central government.
The Centre has a supervisory control over states with the help of Governors, officers of all India Services, Election Commissioners, Comptroller and Auditor General of India etc., who are appointed by the central government which affects provincial administration and polity.
Emergency Provisions: In an Emergency
situation, the Centre can perform the functions and take on the powers of the State. The federal structure is converted into a Unitary one without the need of any formal constitutional amendment.
Integrated Judicial System: The Indian
judiciary, including the Supreme Court and High Courts, is integrated and operates at both the Union and state levels. While each state has its High Court, there is only one Supreme Court for the entire country. The Supreme Court has jurisdiction over matters of constitutional interpretation, disputes between the Union and states, and appeals from High Courts, ensuring uniformity in the application of law.
Dominance of Parliament: The Parliament of India exercises supremacy over state legislatures; for example:
Article 249 empowers the Rajya Sabha to transfer any of the subjects included In the state list to the Parliament, if deemed necessary in national interest.
Article 253, empowers the Parliament to make laws for the whole or any part of the country. Likewise, it can take decisions for implementing any treaty, agreement, and convention with any other country or countries.
Further according to the Article, 254 in case of repugnancy between a Central Law and State Law, it is the law made by the Parliament will prevail except in the case where the state law has received the assent of the President.
Article 3 empowers the Parliament to change the boundaries of any existing state, merge it with some other state, create a new state out of an existing one, or abolish a state altogether.
Flexible Constitution
The bulk of the provisions in the Indian Constitution can be amended by the unilateral action of the Parliament, either by a simple majority or by special majority, which shows that the Indian Constitution is less rigid as compared to other federations.
Further, the power to initiate an amendment to the Indian Constitution lies only with the Centre.
On careful analysis of almost every federation in the world, there is an ultimate centralizing tilt. So as to maintain the integrity and to serve the specific needs of the country.
The Supreme Court in Kuldip Nayar v. Union of India held that Federalism
is a basic feature of the Constitution of India and it is unique in its nature and is tailored according to the specific needs of the country.
QUASI FEDERAL
Asregardsthe nature of Indian Constitution, Prof K.C. Wheare has rightly remarked that Indian Constitution provides, "a system of government which is quasi-federal; a unitary state with the subsidiary unitary features rather than a federal state with subsidiary unitary features."
Moreover, the framers of the Constitution expressed clearly that the Indian Constitution has the harmony of federal and the unitary features.
Dr. Ambedkar has remarked, "The political system adopted in the Constitution could be both unitary as well as federal according to the requirement of time and circumstances".
Therefore, it can be concluded that the Indian Constitution envisages a "Cooperative federalism" with central guidance and state compliance.
Cooperative and Competitive Federalism
On the basis of the relationship between the Union Government and the state Governments, Federalism can be classified Into Cooperative and Competitive federalism.
Granville Austin has called Indian federalism as 'cooperative federalism' which 'produces a strong Central Government, yet does not necessarily result in weak provincial governments that are largely administrative agencies for central policies.
Cooperative Federalism
o It refers to the cooperation between the Central and State Governments for unified political, social and economic development of the country.
In a cooperative federalism, the relation between the center and the states is horizontal.
Constitutional provisions relating to inter-state Council, Zonal Council, 7th Schedule etc., provide for cooperative federalism in India.
The idea of cooperative federalism envisages that despite having differences, the Centre and the state are required to act together in order to face a national crisis.
Competitive Federalism
It is the federalism where the Centre and the states compete with each other to attain economic growth and efficiency in administration.
o In a competitive federalism, the relationship between the central and state governments is vertical and between two or more state governments is horizontal.
Economic reforms of 1990s and the establishment of NITI Aayog has inter alia strengthened the idea of competitive federalism in Indian polity.
PARLIAMENTARY AND PRESIDENTIAL FORM OF GOVERNMENT
On the basis of relation between the legislature and the executive, governments can be classified as Parliamentary and Presidential.
The Constitution of India envisages Parliamentary form of government at both the central and state levels. Articles 74 and Article 75 provide for the Parliamentary form of government at the centre and, Articles 164 and 165 contain similar provisions for governments in the states.
Parliamentary System
It is also called the "cabinet form of government". In this form of government, the citizens elect the representatives of the legislature and the political party with the highest number of representatives is allowed to form the government after elections.
The Council of Ministers, including the Prime Minister, is collectively responsible to the Lok Sabha. They hold office as long as they enjoy the confidence of the majority of the members of the Lok Sabha.
There are two executives, one is the President or the monarch who is the head of the State and the other is the Prime Minister who is head of the Government.
While the President/Monarch has a ceremonial/titular status, it is the Prime Minister who enjoys effective powers in state-governance.
o Moreover, the Prime Minister is empowered to dissolve the lower house of legislature.
Countries like the UK, Japan, Canada etc. have the parliamentary form of government.
Overall, the parliamentary system outlined in the Indian Constitution ensures that the executive remains accountable to the legislature, reflecting the principles of democratic governance and ensuring that the government remains responsive to the will of the people as represented by their elected representatives in Parliament.
Presidential System
In this form of government, there is only one executive i.e., the President who is directly elected by people or an electoral college.
Moreover, the executive is not responsible to the legislature for its policies and decisions and is independent of the legislature as regards its tenure.
Since it is characterized by the concept of single executive, the President is both head of the State and head of the executive. However, the President is not empowered to dissolve the lower house of legislature.
Countries like the USA, Russia, Brazil etc.; have the presidential form of government.
SALIENT FEATURES OF THE INDIAN CONSTITUTION.
INTRODUCTION
The Indian Constitution is one of the most comprehensive and unique in its content and spirit. It embodies the principles of democracy, secularism, socialism, and justice, and provides for a federal system of government with a strong emphasis on fundamental rights and duties. Though borrowed from almost every constitution of the world, the Constitution of India has several salient features that addresses varied challenges associated with caste, creed, religion, language, regionalism, marginalised section of communities etc., distinguished it from the constitutions of other countries.
SALIENT FEATURES OF THE INDIAN CONSTITUTION
Lengthiest Written Constitution
The Indian Constitution is the lengthiest of all the written Constitutions. It is a comprehensive, elaborate and detailed document explicitly mentioning the rights, duties and other provisions contained in 448 articles in 25 parts and 12 schedules.
o Its comprehensiveness can be attributed to the fact that the Constituent Assembly needed to accommodate the vast diversity of the country along with framing a single constitution for both the Center and States.
Federal System with Unitary Bias
The Constitution of India establishes a federal system of government along with a number of unitary features like single citizenship, All India Services, etc.
The basic idea behind federalism is that it is a political contrivance to achieve good governance where units desire unity without uniformity.
Preamble
The Preamble inter alia embodies the aims, aspirations and the principles which form the basis of Indian Constitution.
o The Preamble serves as an aid in the interpretation of the Constitution and is part and parcel of the Constitution like any other constitutional provision.
Fundamental Rights
The Constitution of India is based upon the cardinal principle that every individual is entitled to basic human rights.
Accordingly, Part-III of the constitution (comprising Articles 12-35) guarantees following six fundamental rights which constitute a charter of inviolable rights of an individual against the State:
Right to Equality contained in Articles 14-18
Right to freedom contained in Articles 19-22
Right against exploitation contained in Articles 23 & 24
Right to Freedom of Religion contained in Articles 25-28
+ Cultural and Educational Rights contained in Articles 29 & 30
Right to Constitutional Remedies exercisable through Articles 32 and 226.
Originally, the Indian Constitution contained seven fundamental rights and recognised the right to property as one of the fundamental rights under Article 31.
However, the 44th Constitutional Amendment omitted the right to property as a fundamental right and made it a constitutional right under Article 300A.
o Fundamental rights are considered by the Indian Constitution to be inalienable human rights. A person is entitled to directly approach the Supreme Court of India (under Article 32) or the High Courts (under Article 226) if his fundamental rights are violated by any legislative or executive action of the State.
However, the Indian Constitution also recognizes the principle that there can be no absolute individual right and places reasonable restrictions on fundamental rights under certain circumstances.
Accordingly, the Indian Constitution presents a fine balance between individual rights on the one hand and security of the state or interests of the society on the other.
Directive Principles of State Policy
Directive Principles of State Policy, contained in Chapter IV (Articles 36-51) of the Indian Constitution, constitute one of the novel features of the Indian Constitution.
These directives are not enforceable through Courts and are in the nature of positive mandates upon the State for securing social and economic justice to the citizens of India.
However, though not justiciable, Directive Principles have been stated to be 'fundamental in governance of the country'. Moreover, Article 37 provides that it is the duty of the State to apply these principles in the making of laws.
Blend of Rigidity and Flexibility
The Constitution of India is neither rigid nor flexible, but a synthesis of both.
Some provisions of the Constitution can be amended by special majority as per Article 368 indicating rigidity while some provisions can be amended by a simple majority of the two houses of the Parliament indicating flexibility.
Scheduled and Tribal Areas
Considering the historical background of backwardness of tribal communities, Article 342 of the Indian Constitution inter alia empowers the President to specify these communities as scheduled tribes and to draw up a list of such tribes through a public notification.
Article 366 (25) provides that the Scheduled Tribes means such tribes or tribal communities which are deemed to be so under Article 342 of the Constitution.
o In addition, Article 244(1) and the Fifth Schedule of Indian Constitution define scheduled areas and provide for
administration thereof. Likewise, Article 244(2) and the Sixth Schedule of Indian Constitution define tribal areas and provide for administration thereof.
Judicial Review
The Constitution of India establishes an independent and impartial judiciary entrusted with the power of judicial review.
o The doctrine of judicial review reinforces the supremacy of the Indian Constitution and empowers superior Courts to scrutinize a law made by the Parliament or a State Legislature and also to invalidate it in case of inconsistency with the constitutional provisions.
Universal Adult Franchise: Article 326
of the Constitution has incorporated the principle of universal adult franchise/suffrage as the basis of elections for the Lok Sabha and State Legislative Assemblies and provides that every citizen of India who is not below the age of 18 years is entitled to vote In the elections without any discrimination.
Separation of Power
The doctrine of separation of powers envisages that legislative, executive and judicial functions of the State should be kept separate from each other and should be vested in separate & independent bodies.
The Constitution of India has incorporated this doctrine yet there is no express and rigid separation of power in the Indian Constitution.
In Ram Jawaya v. State of Punjab (1955) Hon'ble Apex Court has observed, "The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions that essentially belong to another." Some of the provisions of Indian Constitution which implicitly incorporate this doctrine are as under:
Article 50 provides that the State shall take steps to separate the executive from judiciary in the public services of the State.
Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Supreme Court or High Court Judge in the discharge of his duties except upon a motion for presenting an address to the President praying for removal of such Judge.
Article 122 provides that the Courts are not empowered to inquire into proceedings of Parliament.
Emergency Provisions
Part-XVIII (Articles 352-360) of the Constitution deal with the emergency powers of the President which empower him to safeguard the sovereignty, integrity and independence of the nation in an abnormal situation.
The President is empowered to impose following three kinds of emergencies:
Nationalemergency,i.e., anemergency arising out of war, external aggression or armed rebellion declared under Article 352.
Emergency due to failure of the constitutional machinery in a state. (President's rule in the States) declared under Article 356.
Financial emergency declared under Article 360.
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