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GS Mains Foundation 2018
GS Mains Foundation 2018

Salient features/Sources of Constitution

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Salient Features of Indian Constitution Sources of the Indian Constitution

Salient Features of Indian Constitution

Originally having 395 Articles divided into 22 parts and 8 schedules, a lengthiest constitution of the world with systematic elaboration on every topic. At present, it contains 448 Articles with 12 schedules as a result of various amendments (101 till so far, GST Amendment).

A. Longest written constitution: The constitution of India is said to be the longest written constitution in the world because, it contains:
• Separate provisions for states and centre and their inter-relationship.
• The borrowed provisions from several sources and several other constitutions of the world.
• The separate provisions for scheduled castes, scheduled tribes, women, children, and backward regions.
• It contains the detailed list of individual rights, directive principles of state policy and details of administration procedures which were laid down to make the constitution an easy handy.

B. Unique blend of rigidity and flexibility: A Constitution may be called rigid or flexible on the basis of its amending procedure.
• Some parts can be amended by ordinary law making procedure while certain provisions can be amended only when a Bill for that purpose is passed in each house of Parliament by a majority of the total membership of that house and by a majority of not less than two-third of the members of that house present and voting.
• Some amendments are also required to be ratified by the legislatures of not less than one-half of the states before being presented to the President for assent.

C. India as a sovereign, socialist, secular, democratic and republic: India is governed by its people through their representatives elected on the basis of universal adult franchise (Government of the people, by the people and for the people).
• India as a sovereign means it manages its internal and external affairs freely without any external forces. However, it continues to be a member of the commonwealth of Nation with the British Monarch as its head.
• The term socialist is added by the 42nd Amendment in 1976, means achievement of socialist goals through democratic, evolutionary and non-violent means. However, India follows the mixed model of socialist and capitalist economy.
• By secular means it recognizes all religions equally without having any state religion which is a part of the basic structure.
• By republic means head of the state (President) is elected one and not the monarch.

D. Parliamentary System of Government: Theoretically, Parliament controls the functioning of the Council of Ministers; hence it is called Parliamentary system.
• Here executive is responsible to the legislature and remains in power as long as it enjoys the confidence of the legislature.
• The President of India, who remains in office for five years, is the nominal, titular or constitutional head (Executive).
• The Prime Minister is the real executive and head of the Council of Ministers who is collectively responsible to the lower house (Lok Sabha).

E. Single Citizenship: Unlike Federation, where citizen enjoys dual citizenship of both State and Union, India has a single citizenship provided by the union and recognized by all the states across India.

F. Universal Adult Franchise: The Indian Constitution establishes political equality in India through the method of universal adult franchise which functions on the basis of ‘one person one vote’. Every Indian who is 18 years of age or above is entitled to vote in the elections, irrespective of caste, sex, race, religion or status.

G. Independent and Integrated Judicial System: The judiciary system is kept free from the influence of the executive and the legislature. As an integrated system, India has the Supreme Court as the apex court below which High Courts come. The High Courts in turn supervise the lower courts.

H. Fundamental Rights, Fundamental Duties and Directive Principles of State Policy: Fundamental Rights are not absolute but are subject to the limitations which are expressly defined by the constitution itself and are enforceable in the court of law.
• The DPSPs are the guidelines to be followed by the states regarding governance and are not enforceable in the court of law.
• The Fundamental Duties, added by the 42nd Amendment are moral conscience which ought to be followed by the Citizens.

I. A Federation with a strong centralizing tendency: India is an indestructible Union with destructible states means it acquires a unitary character during the time of emergency. Hence, some experts say it as a quasi federal in nature.

J. Balancing Parliamentary supremacy with Judicial Review: An independent judiciary with the power of judicial review is a prominent feature of our constitution. The harmonization which our Constitution has effected between Parliamentary Sovereignty and a written Constitution with a provision for Judicial Review is an important achievement of the framers of our Constitution.

The Indian Constitution

The sources of Indian Constitution include the imaginative aspirations of the nationalist leaders, the actual working of the Government of India Act, 1935, and the experience gained from the actual working of some of the Constitutions of important countries of the world.

SEMINAL SOURCES
A. Constituent Assembly Debate: Drawn from the Cabinet Mission Plan, having members including distinguished lawyers, intellectuals and patriots who took 2 years, 11 months and 18 days to prepare the constitution.

B. Nehru Report: Formed under the leadership of Motilal Nehru to boycott the Simon Commission and made recommendations for the desired constitutional setup for India. Such recommendations include:
(i) Grant of Empire;
(ii) Creation of a federal structure for India;
(iii) Bicameralism at the Centre;
(iv) Parliamentary and responsible Government in Provinces;
(v) Guarantee of Fundamental Right; and
(vi) Establishment of Supreme Court as the final court of appeal.

C. Objective Resolutions: Moved by JL Nehru, spelled out making India a sovereign republic where the ultimate supreme power is vested with the people. It stated that the people would get social, economic and political justice, liberties of all types and equality. This objective resolution acquired the place of Preamble in Indian Constitution.

D. Government of India Act 1935: India was governed by the GoI Act 1935 at the time when our constitution was in the process of framing, hence, has been influenced by the same such as:
• Federal set-up;
• Distribution of powers in three lists;
• Provincial autonomy;
• Office of the Governor;
• Bicameral legislature;
• President’s or Governor’s power to issue ordinances; and
• Structure of the Supreme Court.

EXTERNAL SOURCES
Irish Constitution: Directive Principles.
British Constitution: Parliamentary form of government and Parliamentary Privileges.
US Constitution: Fundamental Rights, the Supreme Court, the post of Vice President.
Canadian Constitution: The Federal system, Union-State Relations and Distribution of Powers.
Australian Constitution: The concurrent list, Provisions of trade and commerce.
German (Weimar) Constitution: The emergency provisions

DEVELOPMENT SOURCES
Indian Constitution is dynamic which has grown with the changing needs. Thus, amendments, judicial reviews/decisions, political practices, parliamentary statutes, rules, regulations and ordinances are the developmental sources of the constitution.

Amendment(s): Till September 8, 2016, there have been 101 Amendments (Goods and Services Tax Bill) shaping the Constitution in quite different from the original document. The 42nd Amendment termed as Mini Constitution clearly proves the dynamism of it due to enormous changes it effected to the Indian Constitution.

Judicial Decisions: The Judicial Decisions by the Supreme Court on various important issues have paved the new dimensions such as the Basic Structure which shows the directions for further amendments:
– Gopalan vs. State of Madras;
– State of Madras vs. Champakam;
– Golak Nath vs. State of Punjab; and
– Keshavanand Bharti vs. Kerala State.

Parliamentary Statutes: Parliament, time to time through the process mentioned in the constitution furnishes details of the various articles which are considered as constitutional laws. It provides the details information of the constitution.

Commentaries of Constitutional Experts: While interpreting the Constitution, the views of the distinguished constitutional experts, whether Indian or foreign, enjoy special importance.

• The most notable constitutional experts are Jennings, Gledhill, Alexandrowit, D.D. Basu, Palkhiwala, V.N. Shukla, etc. Their views are not given legal recognition but due regard is paid to them by the judges.

• Moreover, true significance of any provision of the Constitution can be understood in the light of their views.

Rules, Regulations, Ordinances etc.: Each house of the parliament is empowered to make rules for its efficient working. The President has the right to make rules for fixing the constitutional subjects.

• President of India is also empowered to make rules with respect to the condition of services of the members of the Union Public Service Commission.

• President can also frame rules to establish peace and efficient administration of the Union Territories. Above all, the President has also the power to issue ordinances when Parliament is not in session. All these rules, regulations and ordinances serve as sources of the Constitution.

CONSTITUTIONAL PRACTICES
Although the Constitution of India is the most detailed in the world, still certain practices independent of the Constitution have developed in India.
A few examples of such a practice can be enumerated as follows:
• The Central Government takes beforehand the advice of the State Government in the appointment of its Governor.
• Governor can be recalled by the Central Government on the advice of the State Government concerned.
• Governor should not belong to the state to which he is appointed.
• One of the judges of the Supreme Court must belong to the minority community.
• The senior most judge of the Supreme Court should be appointed as the Chief Justice of India.
• The leader of the majority party in Lok sabha is appointed as the Prime Minister.

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