FEATURES OF INDIAN CONSTITUTION

This Article is written by Raghuvansh Singh Kalyani of  LL.M. of Veer Madho Singh Bhandari Uttrakhand Technical University, Dehradun, an intern under Legal Vidhiya

ABSTRACT:

The Constitution belonging to any country is considered as the supreme law of the land. Whatever the other kinds of law prevailing there, be it civil or criminal, their provisions should be in conformity with the Constitution of the land.

In India, the interim government was formed on 2^nd September, 1946, well before independence. Jawaharlal Nehru was its Prime Minister. Dr. B.R. Ambedkar held the position of Law Minister in this government. As per Lord Mountbatten Planning, The Constituent Assembly was formed to make the Constitution. The Election of the members of the Constituent Assembly was done by regional legislative assemblies, wherein the elected members of the princely states were also included. The constituent Assembly on 29^th August, 1947, formed Constitution drafting Committee, whose chairman was none other than Dr. B.R. Ambedkar.

The Drafting Committee prepared the draft and submitted it to Dr. Rajendra Prasad, President of the Constituent Assembly, on 21^st February, 1948, so that it might be discussed section by section. The Constitution was completed in two years, eleven months and eighteen days. The Original Document had 395 Articles, 22 Parts and 8 Schedules. Post enactment since 1950, there have been 106 Amendments to the Constitution till September 2023. The Constitution of India is Also known as “Bag Of Borrowings” and is the “Longest Constitution in the world to the world’s largest democracy”.

The Constitution of India was adopted on 26^th November, 1949, observed as National Law day or National Constitution Day and came into force on 26^th January, 1950 also observed as Republic Day of India. It was only after 2015 that the Ministry of Social Justice and Empowerment notified the government’s decision to promote indigenous values amongst citizens of India and to also pay homage to the legendary works of Dr. Bhimrao Ambedkar, to celebrate 26^th November as the National Law Day, also known as Samvidhan Divas.

The Judiciary, i.e. The Supreme Court or the Apex Court of India is the Guarantor, Interpreter, Arbiter, Protector and Guardian of the Constitution of India.

Keywords:

The Constitution Of India, Indian Judiciary, The Supreme Court, Rule of Law, Separation of Powers, Judicial Review, Salient features of Indian Constitution.

INTRODUCTION

A “Constitution” is a document having a special legal sanctity which outlines the framework and procedure of Government, defines its powers and functions, provides how constitutional changes be made in a democracy, and usually guarantees the citizens certain protections against arbitrary governmental actions. It is a collection of principles according to which the powers of the Government, the rights of the governed and the relation between the two are adjusted.

A country may have a constitution but not necessarily ‘Constitutionalism’. A Constitution ought not merely confer powers on various organs of the Government but also seek to restrain those powers to prevent arbitrary action of the government otherwise it would jeopardise freedom of its governed and lead to an authoritarian oppressive government. Constitutionalism is an antithesis of arbitrary power. Therefore, to protect the interests of people and basic freedoms and dignity of individual and personality, a constitution should be permeated with Constitutionalism, which means it should have built-in restriction on powers.

There are certain norms and principles which promotes Constitutionalism in a Country such as:

1. A Written Constitution,
2. Federalism,
3. Supremacy of the Constitution,
4. Independent Judiciary and Judicial Review,
5. Rule of Law,
6. Separation of Powers,
7. Rigidity of the Constitution,
8. Fundamental Rights,
9. Free elections etc.

The Constitution of India is the longest constitution in the world to the world’s largest democracy. It is a detailed document which is flawlessly drafted and has several features to restrict the arbitrary powers of the Governmental organs and to promote Constitutionalism. It is also known as “bag of borrowing” for it has borrowed several provisions from the Constitution of several countries.

OBJECTIVE

The main objective of this research paper is to critically analyse the features of the Constitution of India and put it in a simple language for a layman and law students to have a basic knowledge and a better understanding of the Constitution, technical terms, nuances and the role of Indian judiciary as a protector, interpreter, guarantor and guardian of the Constitution on India. Not to mention, to also pay a tribute to the makers for providing us with a detailed, flawless and meticulously drafted Constitution keeping in mind the intricacies of modern society and the issues that may arise in future and to resolve them.

FEATURES OF THE CONSTITUTION OF INDIA

• PREAMBLE

The Preamble of the Constitution of India envisages it as a Sovereign, Socialist, Secular, Democratic Republic. The Preamble of the Indian Constitution makes it clear that the people of India have adopted, enacted and given to themselves the Constitution. It signifies that the ultimate source of validity and sanction behind the Constitution is the will of the people. The Preamble secures to all its citizens social, economic and political justice and aims to promote among the people of India Fraternity and assuming the dignity of Individual. It ensures the

liberty of expression, thought, faith and worship (Articles 19(1), 25 and 26)[1] and also Equality of Status and Opportunity (Articles 14 to 18)[2].

The Preamble is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. Several decisions of the Supreme Court pointed out the importance and utility of the grand and noble vision expressed in the Preamble. However, it is not enforceable in a “Court of Law” yet it aids in the legal interpretation of the Constitution where language is ambiguous, the construction which fits the preamble may be preferred.

The view in Berubari’s case[3], that Preamble is not a part of the Constitution has been rejected by the Supreme Court in the case of Keshvanand Bharti v. State of Kerala[4]. The Court held that Preamble forms the part of the Constitution and it is of extreme importance, and should be read in the light of the grand and noble view expressed in Preamble. It is a part of the “basic structure” of the Constitution hence it cannot be abridged or destroyed. However, it can be amended to widen its scope under Article 368. The Preamble has been amended by the CONSTITUTION (42^ND AMENDMENT) ACT, 1976. By this act the word Socialist, Secular and Integrity have been inserted in the Preamble w.e.f. 3^rd January, 1977.

• SUPREMACY OF THE CONSTITUTION

The Salient features of the Constitution of India includes its Supremacy at the paramount. It is the supreme law of the land and all governmental organs and laws derives their authority from the Constitution itself i.e., any act of the Government that is against the Constitution of India is Invalid and of no force. The Legislature, The Executive and the Judiciary cannot violate the provisions of the Constitution. Article 13[5] [ Laws Inconsistent with Fundamental Rights] is important in this regard and provides for the “Judicial review” of all the legislations in India, past as well as future. All laws whether made by the Legislature or by a delegated authority and all executive acts must respect and conform to the fundamental rights enshrined in Part III of the Constitution on India. The Ordinances promulgated by the President of India under Article 123[6] or by the Governor of any State under Article 213[7] must also not be inconsistent with the Fundamental rights. The Constitution at the same time confers the power of Judicial review on the Supreme court and the High Courts via Article 32[8] and 226[9] respectively to declare a law/act void on the grounds of inconsistency with the provisions of the Constitution.

In Keshvanand Bharti v. State of Kerala[10], the Court has made it clear that Constitution is the supreme law of the Country and supremacy of the Constitution is a part of the doctrine of basic structure of the Constitution and therefore it cannot be abrogated, abridged or destroyed by Constitutional Amendments.

In Minerva Mills v. Union of India[11], the Court held that limited amending power of the Parliament is also a part of the basic structure of the Constitution.

• WRITTEN AND RIGID CONSTITUTION

Actually, it is not necessary for a Federal Constitution to be written but in practice it is always found written. However, all the Constitutions are a mixture of written and unwritten elements. The best example of unwritten Constitution is that of U.K., but even it contains many written elements in the form of statutes, judicial decisions and charter. All the Constitutions are in fact a mixture of written law and unwritten customs and conventions. The main reason behind a written Constitution is that on account of distribution of powers between the Central and the State(regional) government an unwritten federal constitution will create much confusion, conflict and uncertainty. The Constitution of India is a best example of written Constitution and is the longest and the most detailed in the world.

Secondly, the process of amendment is an essential feature of a Federal Constitution so as to keep up with the pace of modern society and prevent the law from becoming stagnant and repugnant. The process of amendment of the Constitution of India is a rigid one because it involves the participation of both, the Central and the State Government. However, the Constitution of India has adopted a middle course as some of its provisions e.g., Articles 4, 239A, 312[12] etc.  may be amended by a simple majority i.e., by an ordinary legislative process, while some of its provisions viz. the Fundamental Rights (PART III), Directive Principles of the State Policy (DPSP) (PART IV) and Emergency Provisions (PART XVIII) may be amended by the Parliament by Special Majority.

• FEDERAL GOVERNMENT, DISTRIBUTION OF POWERS AND A STRONG CENTRE

The Indian Constitution provides for a system of federal government with a strong Union at the Centre. It promotes Co-operative federalism. It also provides for the distribution of powers of the State between the Union and the State (Regional) Government. The distribution of powers between the Central and the State Governments are provided under the Constitution of India under the following heads:

1. Legislative Powers (Article 245-254)[13]: The subjects have been divided into three categories, The Union List, The State List and The Concurrent List under VII Schedule of the Constitution.  

a) Union List (List I)[14]: Matters of national importance which require uniform laws for all country. It contains more than 97 entries at present. Only the Parliament can legislate with respect to these matters e.g., defence, foreign affairs, navy, military, banking, currency, union taxes etc.

b) State List (List II)[15]: The state list contains 66 entries. The subjects of local importance lie within the legislative competence of the State Legislature e.g., public order and Police, health, agriculture etc.

c) Concurrent List (List III)[16]: It contains 47 entries, with respect to which both union parliament and the State Legislature have concurrent powers of legislation. The subjects include general laws and social welfare- civil and criminal procedure, marriage, contract etc. However, by the virtue of Article 246(1) and (2), the Parliamentary Legislation has supremacy when field of legislation is on Concurrent list.

d) Residuary Powers (Article 248)[17]: The power to legislate on any matter not enumerated in any of the three lists vests in the Parliament i.e., the residuary powers.

2. Administrative Powers (Articles 256-263)[18]: Articles 256 to 263 provides for the distribution of Administrative powers of the State between the Union and the State(regional) governments. However,

a) According to Article 256 the State must so exercise their powers so as to ensure compliance with the laws made by the Parliament and the Union Government can give such directions to a State as it may deem necessary. If the directions are not complied with, the President can declare emergency on the ground that the government of the State cannot be carried on in accordance with the provisions of the Constitution and can take over the Administration the State.

b) Article 257 enables the Union Government to have control over the States in certain cases. The Executive power of every state shall be so exercised as not to impede or prejudice the Executive powers of the Union and shall extend to the giving of such directions to the state as may appear to the Government of India for that purpose.

3. Financial Powers (Articles 264-293)[19]: Articles 264-293 provides for the distribution of financial powers between the Union and the State Government. Under a Federal Constitution the Union and the State are made financially independent, however, under the Indian Constitution the States depend upon the Union for financial assistance because in practice complete financial independence is not found in any of the existing Federal Constitution. Even in America the States depends on grant-in-aid from the central Government.

According to Article 354 during the proclamation of Emergency the President can direct by order that the distribution of revenue between the Union and the States(Articles 268-279) shall have the effect subject to such  exceptions or modifications as he thinks fit.

• UNITARY FEATURES / NON-ESSENTAL CHARACTERISTICS OF FEDERAL CONSTITUTION

The Provisions for Single Citizenship, Unified System of Courts, Election Commission, All India Services like the Indian Administrative and Police Services, Comptroller and Auditor-General of India, Governor of States, Emergency Provisions and provisions of Article 2 (Admission or establishment of new States) and Article 3 (Formation of new States and alteration of areas, boundaries or names of existing States) also indicates the Unitary feature of the Indian Constitution.

In Satpal v. State of Punjab (1982)[20], the Supreme Court has expressed a view that there is a combination of federal structure with unitary feature in the Constitution of India.

In Pradeep Jain v. Union of India[21], the Court held that India is not a compact of sovereign states that have ceded their sovereignty and came together to form a federation, thus, India cannot be characterised as a Federal State. It has certain federal features but it is still not a Federal State.

• RULE OF LAW AND SEPARATION OF POWERS

The ‘Rule of Law’ plays an important role in the administration of the Country. It provides protection against the arbitrary action of the administrative authorities. It is also regarded as the part of natural justice. The Constitution of India does not only establish the rule of law, but also provides for its protection and enforcement. Every organ of the State is controlled and regulated by the rule of law and the absence of arbitrary power has been held to be its first and foremost essential. The rule of law requires that the discretion conferred upon the executive authorities must be contained in clearly confined limits.

In Indira Nehru Gandhi v. Raj Narain[22], the Court expanded the meaning of Rule of Law and held that it is regarded as the basic structure of the Constitution and cannot be abrogated and destroyed even by the Parliament.

In Khatri v. State of Bihar[23], the Court held that free legal aid for the poor and speedy trials in criminal cases are necessary adjuncts to the rule of law.

The ‘doctrine of Separation of Powers’ prevent concentration of powers in any of the three organs of the government. It also prevents one organ from making encroachments upon the functions of the other organs.

In Keshvananda Bharti v. State of Kerala[24], the Court held that none of the three organs i.e., The Executive, The Legislature and The Judiciary can take over the functions assigned to another organs. It was held that this scheme is a part of the basic structure of the Indian Constitution.

• INDEPENDENCE OF JUDICIARY AND JUDICIAL REVIEW

In order to maintain the Supremacy of the Constitution and uphold the democratic structure intact, there must be an independent and impartial authority to decide the disputes between the units of units of federation and the Union. It is also necessary to prevent the arbitrary use and abuse of discretionary powers by the executive and administrative authorities, to prevent the miscarriage of justice and to safeguard the interests and rights of citizens. The Supreme Court is such an authority under the Constitution of India, which is the final arbiter, interpreter, protector, guarantor and guardian of the Constitution of India. Independence of Judiciary is also a part of the basic structure of the Constitution and Article 50 of the Constitution of India, which is a part of the Directive Principles of State Policy (Part IV) provides that the State shall take steps to separate the Judiciary from the executive in the public services of the State.

Philosophy of Judicial Review is rooted in the principle that Constitution is the fundamental law and all governmental organs should abide by the provisions of it and must work within the framework and guidelines mentioned therein. Any contravention of the provisions would make an act of the organs and laws enacted by the legislature unconstitutional and of no force. Judicial review means that the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of the legislature according to the distribution of powers (under Article 246), or it is contravention of fundamental rights or any of the mandatory provisions of the Constitution.

Article 32(1) guaranteed the right to move Supreme Court by ‘appropriate proceedings’ for the enforcement of Fundamental Rights. Article 32(2) deals with Supreme Courts’s power to issue order, writs, directions etc. for the enforcement of Fundamental Rights.

Article 226 empowers the High Courts to issue writs, orders,

direction etc for the enforcement of Fundamental rights and also other legal rights.

‘Social Action Litigation’ or ‘Public Interest Litigation’ also known as ‘pro bono publico litigation’ is another remedy which Courts now permit at the instance of ‘public-spirited’ citizens for the enforcement of Constitutional or any other legal rights on behalf of any person or group pf persons who are unable to approach the court by reason of lack of knowledge, poverty or socio-economic disadvantaged position or otherwise are unable to approach the Court for relief.

Not to mention Article 136 empowers the Supreme Court to grant special leave to appeal in its discretion.

In A.K. Gopalan v. State of Madras[25], the power of judicial review was firmly established and limitations for its exercise were clearly enunciated.

In S.P Gupta v. Union of India[26], also known as the ‘Judges Transfer Case’, the court held that any member of public having sufficient interest can maintain an action for judicial redress for public injury in relation to any Constitutional and legal rights under Articles 226 and 32.

CONCLUSION

By the broad view of locus standi permitting PIL, the Supreme court has considerably widened the scope of Article 32. Besides, providing remedies or reliefs to aggrieved persons, the Supreme court in many PIL cases, have entered the fields traditionally reserved for the executive. The right given to the citizen to move the Supreme Court by appropriate proceedings under Article 32 and claim appropriate remedies for the enforcement of his fundamental rights is in itself a matter of fundamental right. The Supreme court has been empowered with wide powers to make sure that the makers of law stay in the confined limits set up by the constitution and does not in any way act ultra-vires. It is also the duty of the court to enforce constitutional rights of its citizens and provide a remedy to them in case of infringement of rights and injury sustained and to prevent the executive authorities to act in an arbitrary manner and uphold constitutionalism.

REFERENCES

• THE CONSTITUTION OF INDIA [(SAMYAK PRAKASHAN 2021, FIRST EDITION)].
• CONSTITUTIONAL LAW OF INDIA (Dr. A. K. Jain) (Ascent Publications)
• Berubari’s case, AIR (1960) SC 858
• Keshvanand Bharti v. State of Kerala, AIR (1973) SC 1467
• Minerva Mills v. Union of India, AIR (1980) SC
• Satpal v. State of Punjab, (1982) 1 SCC 12
• Pradeep Jain v. Union of India, AIR (1984) SC 1420
• Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC
• Khatri v. State of Bihar, AIR 1981 SC
• A.K. Gopalan v. State of Madras, AIR (1950) SC 27
• S.P Gupta v. Union of India, AIR (1982) SC 149
• THE CONSTITUTION OF INDIA- BARE ACT

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[1]  THE CONSTITUTION OF INDIA

[2]  THE CONSTITUTION OF INDIA

[3]  Berubari’s case, AIR (1960) SC 858

[4]  Keshvanand Bharti v. State of Kerala, AIR (1973) SC 1467

[5]  THE CONSTITUTION OF INDIA

[6] THE CONSTITUTION OF INDIA

[7]  THE CONSTITUTION OF INDIA

[8] THE CONSTITUTION OF INDIA

[9] THE CONSTITUTION OF INDIA

[10] Keshvanand Bharti v. State of Kerala, AIR (1973) SC

[11] Minerva Mills v. Union of India, AIR (1980) SC

[12] THE CONSTITUTION OF INDIA

[13] THE CONSTITUTION OF INDIA

[14] THE CONSTITUTION OF INDIA, Schedule VII

[15] THE CONSTITUTION OF INDIA, Schedule VII

[16] THE CONSTITUTION OF INDIA, Schedule VII

[17] THE CONSTITUTION OF INDIA

[18] THE CONSTITUTION OF INDIA

[19] THE CONSTITUTION OF INDIA

[20] Satpal v. State of Punjab, (1982) 1 SCC 12

[21] Pradeep Jain v. Union of India, AIR (1984) SC 1420

[22] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC

[23] Khatri v. State of Bihar, AIR 1981 SC

[24]Keshvanand Bharti v. State of Kerala, AIR 1973 SC

[25] A.K. Gopalan v. State of Madras, AIR (1950) SC 27

[26] S.P Gupta v. Union of India, AIR (1982) SC 149