Salient features of the Constitution
By Bala Brahmiah | THE HANS INDIA |
Sep 05,2017 , 11:38 PM IST
The Indian constitution is unique in its contents and its spirit. Though borrowed from almost every constitution of the world. It has several salient features that distinguish it from the constitutions of other countries
It should be noted, at the outset that a number of original features of the constitution have undrgone a substantial change on account of several amendments particulary 7th, 42nd, 44th, 73rd and 74th amendments.
1) Lengthiest written constitution
The constitution of the India is the lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed account. The original constitution contained a preamble, 395 Articles (22 parts) and 8 schedules. The various amendments carried out since 1951 have deleted about 20 Articles and part VII and added about 4 parts and 4 scheduleds (9,10,11,12). No other constitution in the world has so many articles and schedules. Even after the repeal of several provisions it still contains 461 articles and 12 schedules. The following factors have contributed to the bulkness of our constitution.
i) Incorporation of the accumulated experience of different constitutions
The framers sought to incorporate the accumulated experience gathered from the working of all the known constitutions and to avoid all defects and loopholes of those constitutions. The chapter on fundamental rights was framed upon the model of the American constitution, the parliamentary system of the government was adopted from the UK. The DPSPs were brought from the constitution of Eire ( Ireland ). The provisions relating to emergencies were copied from the constitution of the German Reich and the governtment of India act 1935.
Apart from the above, it has embodied the modified results of judicial decisions made elsewhere interpreting comparable provisions in order to minimize uncertainity and litigation.
ii) Detailed administrative provisions
The authors of the Indian constitution not merely content with laying down the fundamental principles of governance but also reproduced the government of India act 1935 in providing matters of administrative detail. The very adoption of the bluk of the provisions from the government of India act 1935 contributed to the volume of the new constitution since the act of 1935 itself was a lengthy and detailed organic law. It was felt that the smooth working of an infant democracy might be jeopardised unless the constitution mentions in detail the provisions which otherwise left in other constitutions to ordinary legislation. The provisions of judiciary, the all India services, the public service commissions and elections and the like are the contributors of the bulkiness.
iii) Peculiarity of the problems to be solved
The vastness of the country and the peculiar problems to be solved have also contributed to the bulk of the constitution. For example, the entire part XVI relating to SCs, STs and other backward classes, another part XVII relating to emergency provisions and part XVIII relating to offical language.
iv) Inclusion of the Constitution of the units
While the constitution of US deals only with the federal government and leaves the states to draft their own constitutions, the Indian constitution provides the constitutions of both the union and the units with the fullness and precision. Since the units of the federations differed in their historical origins and their political development, special provisions for diffrent classes of the units have to be made, such as the part B states, former Indian states, part C states ( centrally administered areas) and some smaller terrtories in part D.
Special provision for Jammu and Kashmir is also included. The state of Jammu and kashmir was accorded a special status and was allowed to make its own state constitution. All other provisions of the constitution didnot directly apply to Jammu and kashmir but in accordance with Article 370 an order made by the president in consultation with the government of the state will apply to Jammu and kashmir. Special provisions for Nagaland, Karnataka, Sikkim etc were also provided. Even after the inaugration of the constitution special provisions have been inserted to meet the regional problems and demands in certain states such as Nagaland, Assam, Manipur, Andhra pradesh, Gujarat, Maharastra, Sikkim, Karnataka, Mizoram etc. [ Article 371 and 371J].
v) Elaborate federal relations
Not only are the provisions relating to the units elaborately given, the relations between the federation and the units and the units interse whether legislative or administrative are also codified in order to eliminate conflicts as far as possible. The lessions drawn from the political history of India which induced the framers of the constitution to give it a unitary bias, prompted them to make detailed provisions regarding the distribution of powers and functions between the union and their states in all aspects of their adminstrative and other activities, and also as regards inter-state relations, coordination and adjudication of the disputes amongst the states.
vi) Inclusion of justiciable and nonjusticiable rights and fundamental duties
There is not only a bill of rights under part III of the constitution but also directive principles under part IV of the constitution which are nonjustticiable but are nevertheless regarded as fundamental in the governance of the country -being in the nature of principles of social policy as contained in the constitution of the Republic of Ireland. The DPSPs are though non-justiciable rights they serve as moral restraints upon future governments which have a binding force of public opinion. Even in the list of fundamental rights the farmers of the constitution had to include novel matters owing to the peculiar problems of our society. Eample:- Untouchability and preventive detention. In the 42nd amendment a new chapter of fundamental duties of citizens (part IVA) Article 51A has also been added in the constitution.
2) Blend of rigidity and flexibility
Another distinctive feature of of the Indian Constitution is its flexibility as well as rigidity. It 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.
b) There are few provisions of the constitution which can be amended by the special majority of parliament and ratification by 1/2 of the total states.
The remaining part of the constitution can be altered by a simple majority in the parliament which is required for general legislation. such constitutional changes shall not be deemed amendments of the constitution.
Yet another evidence of this flexibility is the power given by the constitution itself to parliament to supplement the provisions of the constitution by ordinary legislation. For example article 5 and 8 Lays down the conditions for acquisition of citizenship at commencement of the constitution and article 11 vests plenary powers in Parliament to legislate on this subject. In pursuance of this power parliament has enacted the Citizenship Act 1955.
K.C Wheare aprobated the amending procedure stating that " this variety in the amending process is wise but is rarely found." This wisdom has been manifested in the ease with which Sikkim, a protectorate since British days could be brought under the constitution first as an associate state (35th amendment Act) and then a full-fledged state of the union( 36th amendment Act 1975).
3) Reconciliation of the written constitution with parliamentary sovereignty
The combination of the theory of fundamental law which underlies the written constitution of the US, with the theory of parliamentary sovereignty which underlies the unwritten constitution of England is the result of the liberal philosophy of the framers of the Indian constitution.
The parliamentary system is also known as the Westminster's model of the government, responsible government and cabinet form of the government. It is based on the principle of cooperation and co-ordination between the organs of the government. The constitution establishes the parliamentary government both at the centre and in the states.
Even though the indian parliamentary system is largely based on the British pattern, there are some fundamental differences between the two. The indian parliament is not a sovereign body like the British Parliament and the Indian state has an elected head Unlike the Britain's hereditary monarch.
Though our constitution is a written constitution, it is both rigid and flexible at the same time. The flexibility is illustrated by the fact that during the past 67 years it has been amended 122 times. The rigidity of our constitution is reflected for two reasons:-
a) that the process of amendment was complicated and difficult.
b) that the matters which should have been left to ordinary legislation having been incorporated into the constitution, no change in these matters is possible without undergoing the process of amendment. Thus there is a striking balance between the supremacy of the constitution on the one hand and the sovereignty of the parliament on the other hand.
4) Integrated and independent judiciary
The Indian constitution establishes a judicial system that is integrated as well as independent. The Supreme Court stands at the apex of the judicial system in the country, below it there are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts i.e district courts and other lower courts. This single system of courts enforces both the central as well as the state laws.
The supreme court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of citizens and the guardian of the constitution. Hence the constitution has made various provisions to ensure its independence - security of the tenure of the judges, fixed service conditions for the judges, all the expenses of the supreme court charged on the consolidated fund of India, prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement, power to punish for its contempt vested in the supreme court, the separation of judiciary from the executive and so on.