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Salient Features of the Indian Constitution

General Studies

Salient Features of the Indian Constitution

The Constitution of India has some distinct and unique features as compared to other constitutions to the world. As Dr. B.R. Ambedkar, the Chairman of the Drafting Committee puts it, the framers had tried to accumulate and accommodate the best features of other constitutions, keeping in view the peculiar problems and needs of our country. Besides this, there are some features which our constitution shares with other constitutions. The following are the salient features of the Constitution of India. A. Unique Features: 1. Framed By the People of India The Constitution has been framed by the representatives of the people of India through a Constitution Assembly during 1946-49. All the important personalities of that time, except Gandhi and Jinnah, were its members. The first meeting of the Constituent Assembly took place on Dec 9, 1946 with Dr. Sachidanand Sinha as its interim President. Dr. Rajendra Prasad was elected as its President on Dec 11, 1946. The Constituent Assembly consisted of 389 members, of which 292 were elected by the elected members of the Provincial Legislative Assemblies while 93 members were nominated by the Princely States.

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Derived from Various Sources It has been derived from various sources. Features of the Indian Constitution adopted from other Constitutions are as follows:

Derived from the British Constitution Parliamentary form of government: A Parliamentary System is a system of government in which the ministers of the Executive Branch get their legitimacy from a Legislature and are accountable to that body, such that the Executive and Legislative branches are intertwined. The idea of single citizenship: The Indian citizenship and nationality law and the Constitution of India provide single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India.

Relevant Indian legislation is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Citizenship (Amendment) Act 2003 received the assent of the President of India on 7 January 2004 and came into force on 3 December 2004. The Citizenship (Amendment) Ordinance 2005 was promulgated by the President of India and came into force on 28 June 2005. Following these reforms, Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli (citizenship by right of birth within the territory). The idea of the Rule of law: Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. The essential characteristic of the rule of law are: i.The supremacy of law, which means that all persons (individuals and government) are subject to law. ii. A concept of justice which emphasizes interpersonal adjudication, law based on standards and the importance of procedures.

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Salient Features of the Indian Constitution

General Studies

iii. Restrictions on the exercise of discretionary power. iv. The doctrine of judicial precedent. v. The common law methodology. vi. Legislation should be prospective and not retrospective. vii. An independent judiciary. viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix. An underlying moral basis for all law. Institution of Speaker and his role: The Speaker is the presiding officer of the lower house of Parliament of India. His/her role is similar to that of Speakers elsewhere in other countries that use the Westminster system of government. Lawmaking procedure: The legislative procedure in India for the Union Government requires that the proposed law or bill passing through two houses of the Indian legislature. The legislative procedure for the states requires that the proposed law or bill has to be passed in the State Vidhan Sabha (Lower House) and then through the State Vidhan Parishad (Upper House) if there exists one in that state. Procedure established by Law under article 13

Derived from the United States Constitution Charter of Fundamental Rights, which is similar to the United States Bill of Rights: Fundamental rights are a generally regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or "rights." Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part owing to the idea that human beings have such "fundamental" rights, such that transcend all jurisdictions, but are typically reinforced in different ways and with different emphasis within different legal systems. Federal structure of government: A federation, also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central (federal) government. In a federation, the self-governing status of the component states is typically constitutionally entrenched and may not be altered by a unilateral decision of the central government. Power of Judicial Review and independence of the judiciary: The Indian judiciary is independent of the executive and legislative branches of government according to the Constitution. The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehavior or incapacity. A person who has been a Judge of the Supreme Court is debarred from practicing in any court of law or before any other authority in India. President as the supreme commander of armed forces u/a 52: The President of India is the head of state of the Republic of India. The President is the formal head of the Legislature, Executive and Judiciary branches of Indian Democracy and is the commander-in-chief of the Indian Armed Forces. The Powers to pardon and clemency vests with the President of India. Due process of law u/a 13

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Derived from Irish Constitution

Salient Features of the Indian Constitution

General Studies

Constitutional enunciation of the directive principles of state policy: The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative matters.

Derived from French Constitution Ideals of Liberty, Equality and Fraternity: The Indian Constitution provides for the following: LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation. Derived from Canadian Constitution A quasi-federal form of government (a federal system with a strong central government) The idea of Residual Powers: The Constitution clearly enumerates the areas of control under the centre and the states in three lists. List I consists of subject under the Control of Union, while List II contains areas of Control of the States. Yet there is a third list known as concurrent list. The Union and States have concurrent powers on the subjects contained in this list. These lists are contained in seventh schedule of our Constitution. By and large, defense of the country, foreign affairs, currency, railways, shipping and navigation etc. are the subjects of the Union List, while maintenance of law and order, prisons, police force, local governments, public health etc. are subjects of State List. The subjects like criminal law and procedure, marriage and divorce, lunacy, forests, economic and social planning etc. are in the concurrent list. The subjects which are not mentioned in any of the three lists are put in the residuary list.

Derived from Australian Constitution Freedom of trade and commerce within the country and between the states: The constitution makers desired to promote free flow of trade and commerce in India as they fully realized that economic unity and integration of the country provided the main sustaining force for the stability and progress of the political and cultural unity of the federal polity, and that the country should function as one single economic unit without barriers on internal trade. In order to ensure that the state legislatures subjected to local and regional pulls do not create trade barriers in future, Article 301 was incorporated in the constitution. According to this provision, "trade, commerce and intercourse throughout the territory of India shall be free". The constitution makers were fully conscious of the need for maintaining economic unity and progress of federal polity while drafting the relevant Articles of part XIII. Article 301 is not a declaration of a mere platitude or the expression of a pious hope of a declaratory character. It embodies and enshrines a principle of paramount importance that economic unity will provide the main sustaining force for stability and the progress of the political and cultural unity of the country. Power of the national legislature to make laws for implementing treaties, even on matters outside normal Federal jurisdiction

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Derived from Japanese Constitution Fundamental Duties u/a 51-A

Salient Features of the Indian Constitution

General Studies

Derived from Weimar Constitution (German) 3. Emergency Provision u/a 356 Sovereignty of the People The Constitution propagates the people of India to be the supreme authority. Republican Polity: As opposed to a monarchy, in which the head of state is appointed on hereditary

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basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country. 5. Secular Polity: The word secular was inserted into the Preamble by the 42nd amendment act of 1976. It implies equality of all religions and religious tolerance. India, therefore, does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. The Supreme Court in S.R Bommai v. Union of India case held that secularism was an integral part of the basic structure of the constitution. B. 6. Other Features: Comprehensive Document The Constitution is a comprehensive document with 395 articles, 24 parts and 12 schedules.

Parts are the individual chapters in the Constitution, focusing on specific issues of law. Preamble Part I - Union and its Territory Part II - Citizenship. Part III - Fundamental Rights Part IV Directive Principles and Fundamental Duties. Part V - The Union. Part VI - The States. Part VII - States in the B part of the First schedule(Repealed). Part VIII - The Union Territories Part IX Municipalities. Panchayat system and Part XII - Finance, Property, Contracts and Suits Part XIII - Trade and Commerce within the territory of India Part XIV - Services Under the Union, the States and Tribunals Part XV - Elections Part XVI - Special Provisions Relating to certain Classes. Part XVII - Languages Part XVIII - Emergency Provisions Part XIX - Miscellaneous Part XX - Amendment of the Constitution Part XXI Temporary, Transitional and Special Provisions Part XXII - Short title, date of commencement, authoritative text in Hindi and Repeals

Part X - The scheduled and Tribal Areas Part XI - Relations between the Union and the States.

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Salient Features of the Indian Constitution

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Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government. First Schedule (Articles 1 and 4) States and Union Territories This lists the states and territories of India, any changes to their borders and the laws used to make that change. Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221) Emoluments for HighLevel Officials This lists the salaries of officials holding public office, judges, and Controller and AuditorGeneral of India. Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219) Forms of Oaths This lists the oaths of offices for elected officials and judges. Fourth Schedule (Articles 4 and 80) This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory. Fifth Schedule (Article 244) This provides for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions). Sixth Schedule (Articles 244 and 275) Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram. Seventh Schedule (Article 246) The union (central government), state, and concurrent lists of responsibilities. Eighth Schedule (Articles 344 and 351) The official languages. Ninth Schedule (Article 31-B) - Articles mentioned here are immune from judicial review. Tenth Schedule (Articles 102 and 191) "Anti-defection" provisions for Members of Parliament and Members of the State Legislatures. Eleventh Schedule (Article 243-G) Panchayati Raj (rural local government). Twelfth Schedule (Article 243-W) Municipalities (urban local government).

7. Parliamentary Democracy: Parliamentary democracy is the democratic form of government in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government, its leader becoming prime minister or chancellor. Executive functions are exercised by members of the parliament appointed by the prime minister to the cabinet. The parties in the minority serve in opposition to the majority and have the duty to challenge it regularly. The prime minister may be removed from power whenever he loses the confidence of a majority of the ruling party or of the parliament. Parliamentary democracy originated in Britain and was adopted in several of its former colonies. 8. Federal Form of Polity: Indian Constitution adopted for federal form of the government. The basic features of a federation are: Division of Powers: In a federal government, the powers of administration are divided between the centre and the units. The powers may be distributed in one of the two ways. Either the Constitution states what powers the federal authority shall have or leaves the remainder to the federating units, or it states what powers the federating units shall possess and leaves the remainder to the federal authority. The remainder is generally known as residuary powers. The first method was employed in America and the second in Canada. The federal government in U.S.A., for example, is weak in relation to the states and reverse is the case with Canada. Written Constitution: A federation must have a written constitution. A federation is a political partnership of various states and consequently there must be a written constitution.

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Salient Features of the Indian Constitution

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Rigid Constitution: The constitution of a federation should be better rigid so that it could be regarded as a sacred agreement, the spirit of which should not be easily violated. A flexible constitution allows scope to the central government to curtail the autonomy of the federating states. Special Judiciary: In a federation there are possibilities of constitutional disputes arising between the federal centre and the units or between one unit and another or between the citizens and the government. All these disputes are to be adjudicated in the light of the constitution. For this purpose a special judiciary with wide powers must be established. It should act as the custodian and guardian of the constitution. It should be vested with powers of declaring any law, national or local, ultra vires if it is at variance with the articles of the constitution. Supremacy of the Constitution: The constitution is the supreme law in a federation. Neither the central government nor the government of the units can go against its spirit. Double Citizenship: Citizens in a federal state have dual interests and they should be given rights of double citizenship citizenship of the state wherein they are domiciled and citizenship of federal state as a whole. Bill of Rights: Citizens in a federation enjoy certain rights given to them by the constitution. The constitutions of India, Russia, and the U.S.A. have given rights to the citizens. It is a well established custom now. 9. Fundamental Rights 10. Right to Equality Right to Freedom Right against Exploitation Right to Freedom of Religion Cultural and Educational Right Right to Constitutional Remedies Saving of Certain Laws

Fundamental Duties The fundamental duties were included into the constitution through an amendment in 1976. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem To cherish and follow the noble ideas which inspired our national struggle for freedom. To uphold and protect the sovereignty, unity and integrity of India. To defend the country and render national service when called upon to do so. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. To value and preserve the rich heritage of our composite culture. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. To develop the scientific temper, humanism and the spirit of enquiry and reform To safeguard public property and to abjure violence

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Salient Features of the Indian Constitution

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To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.

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Directive Principles of State Policy State to secure a social order for the promotion of welfare of the people. Certain principles of policy to be followed by the state. Organization of village panchayats. Right to work, to education and to public assistance in certain cases. Provision for just and humane conditions of work and maternity relief. Living wage, etc., for workers. Uniform civil code for the citizens. Provision of free and compulsory education for children. Promotion of education and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. Duty of the State to raise the level of nutrition and the standard of living and to improve public health; Organization of agriculture and animal husbandry. Protection and improvement of environment and safeguarding of forests and wild life. Protection of monuments and places and objects of national importance. Separation of judiciary from executive. Promotion of international peace and security.

The importance of the Constitution The Constitution is superior to all other laws of the country. Every law enacted by the government has to be in conformity with the Constitution. The Constitution lays down the national goals of India - Democracy, Socialism, Secularism and National Integration. As well as the basic structure of government under which the people are to be governed. It establishes the main organs of government - the executive, the legislature and the judiciary. The Constitution not only defines the powers of each organ, but also demarcates their responsibilities. It regulates the relationship between the different organs and between the government and the people. The Constitution applies to the State of Jammu and Kashmir with certain exceptions and modifications as provided in article 370 (which is a temporary provision) and the Constitution (Application to Jammu and Kashmir) Order, 1954.

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