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Salient Features of Indian Constitution

Salient Features of Indian Constitution

Introduction 

The Constitution of India was framed by the Constituent Assembly, set up in 1946 under the provisions of the Cabinet Mission Plan. Dr Rajendra Prasad was the President of the Constituent Assembly and Dr B.R. Ambedkar was the Chairman of the seven-member Drafting Committee which drafted the Constitution. The Constituent Assembly took 2 years, 11 months and 18 days to frame the Constitution.

The Constituent Assembly held its first meeting on 9th December 1946 and the Constitution of India was finally adopted on 26th November, 1949. It came into force on 26th January, 1950 (which is also known as the date of its “commencement”) and on this day India became a Republic. The reason for its commencement after two months of its adoption was to signify the January 26 as the original date of achievement of Independence. It was this day, i.e. 26th January, in 1930 which the Indian National Congress (INC) had first celebrated as the Independence Day of India. 

Value premises 

A constitution is the highest law of a country and reflects the fundamental principles on which a system of government and administration of a country is based. Constitution of India is vision document for overall welfare of people. It has provisions for achieving this goal. The Constitution of India is a resolution of people of India to establish India as a Sovereign Democratic Republic, where all rights of the people irrespective of differences of class, race, sex, caste or place of birth are protected. These principles provide autonomy and dignity to each individual. Individuals are the supreme authority to take decisions about themselves through democratic process.  

The Constitution makers tried to include the best features i.e. most desirable and suitable features from the Indian point of view and were successful to a very large extent. Speaking in the Constituent Assembly, Dr. B.R. Ambedkar observed: “I feel it (Constitution) is workable, it is flexible and it is strong to hold the country together both in peace time and war time. Indeed if I may say so, if things go wrong under the Constitution, the reason will not be that we had a bad Constitution, what we will have to say is that man was vile.”

Salient features of Indian Constitution:

Dr. Subhash Kashyap (Constitutional expert and former Secretary-General of Lok Sabha) observes: “the Constitution of India is a most unique document. It is unique in many ways. It cannot be fitted in any particular mould or model. It is a blend of the rigid and the flexible, federal and unitary, and presidential and parliamentary. It attempts a balance between the fundamental rights of the individual on the one hand and the socio-economic interests of the people and security of the state on the other. Also, it presents a synthesis between the principals of parliamentary sovereignty and judicial Supremacy.

Lengthiest written constitution 

The Indian Constitution is the lengthiest and the most detailed written constitution in the world.  It has been the endeavour of the framers of the constitution to provide for the solution of all the problems of administration and governance of the country. Even those matters which are subject of conventions in other countries have been put down in black and white. Thus, while the US Constitution originally comprised only 7 articles, the Australian constitution 128 articles the Canadian constitution 147 articles, the Constitution of India originally had 22 parts, 395 articles and 8 schedules. Presently, it has 25 parts, around 450 articles and 12 schedules and has been amended 106 times so far, with the latest 106th Amendment Act, 2023 providing 33% reservation to women in the Lok Sabha and State Assemblies. Three parts, namely, 9A Municipalities, 9B Co-operative societies, and 14A tribunals, were added to the Constitution as amendments, raising the total number of parts from 22 to 25.

As we all know, India is a very diverse country and it was necessary to draft a long Constitution incorporating various provisions in order to accommodate various differences. The parent document for drafting the Indian Constitution was the Government of India Act 1935, and that document itself was very lengthy. 

The extra-ordinary length of the constitution is because of several factors; some of them are mentioned below:

  • It incorporates the experience of all leading constitutions like that of USA, UK, France, Australia, South Africa etc.
  • It prescribes constitution for the Union as well as for the States. The American Federal Constitution covers only the organisation of national government leaving the state constitutions to be framed by the states themselves
  • It incorporates detailed provisions regarding Centre – State relations in administrative, legislative and financial spheres. 
  • It includes justifiable rights (as in fundamental rights) and non-justifiable rights (for example in DPSPs)
  • It contains special provisions to address tribal issues (e.g. 5th schedule, 6th schedule) and regional problems (e.g. Article 371 – 371H)
  • It contains detailed provisions for local-self governments in Parts 9 and 9A and Schedules 11 and 12.

A Combination of Rigidity and Flexibility 

The Indian Constitution is a unique example of combination of rigidity and flexibility. A constitution may be called rigid or flexible on the basis of its amending procedure. In a rigid constitution, amendment of the constitution is not easy. The Constitutions of USA, Switzerland and Australia are considered rigid constitutions while the British Constitution is considered flexible because amendment procedure is easy and simple.  

UK has no written constitution; there is no difference between a constitutional law and an ordinary law. The constitutional law can be amended exactly in the same manner in which ordinary law is passed or amended. In the United States however, the method of constitutional amendment is highly rigid. It can be carried out only with the agreement of two-third majority of the congress and its subsequent ratification by at least three-fourths of the states. 

The constitution of India strikes a golden mean, thereby avoiding the extreme flexibility of the English constitution and the extreme rigidity of the American constitution.

The Constitution of India provides for three categories of amendments:

  • In the first category, amendment can be done by the two houses of Parliament simple majority of the members present and voting of before sending it for the President’s assent. For example as in the case of admission or establishment of new states, increasing the number of puisne judges in the Supreme Court, deciding upon the quorum in the parliament.
  • In the second category amendments require a special majority. Such an amendment can be passed by each House of Parliament by a majority of the total members of that House as well as by the 2/3rd majority of the members present and voting in each house of Parliament and send to the President for his assent. Majority of the provisions in the constitution are amended in this way. For example amendment of fundamental rights, DPSPs etc.
  • In the third category besides the special majority mentioned in the second category, the same has to be approved also by at least 50% of the State legislatures.  This category covers those amendments which affect the federal structure of the polity, for e.g. amendment in the manner of the election of the President, amendment in the 7th schedule etc.

It is to be noted that the second and third categories of amendment are provided for under Article 368 while category 1 is outside the scope of Article 368. Category 1 amendments are not deemed to be the amendments of the constitution for the purposes of Article 368.

Thus, you can see that the Indian Constitution provides for three types of amendments ranging from simple to most difficult procedure depending on the nature of the amendment.

Drawn from different sources

The sources of the Indian Constitution are varied and diverse, reflecting India’s long history and cultural traditions. The Constitution draws upon a number of sources such as – 

Government of India Act, 1935

The British government enacted various acts from time to time viz. GoI Act, 1909, 1919 and 1935. Among these, the GoI Act, 1935 exercised the greatest influence on the constitution of the Indian republic. The constitution is, both in language and in substance, a close copy of the GoI act, 1935. Prof. Ivor Jennings rightly observes that “the constitution derives directly from the GoI Act, 1935 from which in fact, many of its provisions are copied almost textually.

From this Act, the Indian Constitution adopted distribution of powers between centre and states, federal structure of India, provincial autonomy, responsible form of government, bicameral system at the centre and in some states, office of governor etc.

British Constitution

It was but natural that the Constitution of Great Britain exercised great influence on the makers of the constitution. Because India’s long association with Britain, the leaders of the nation were familiar the constitution of that country and its working. 

Key features adopted from British constitution –

  • Parliamentary form of government and Cabinet system
  • Rule of Law
  • Legislative procedure
  • Bicameralism
  • Parliamentary privileges

Some other sources 

Features borrowed

US Constitution

Fundamental rights

Independence of Judiciary & Judicial review

Post of Vice-President

Impeachment of the President

Canadian Constitution

Federal polity with a strong Centre

Appointment of Governors by the Centre

Vesting residuary powers in the centre

Irish Constitution

DPSPs

Election of the president

Nomination of members to the Rajya Sabha

Australian Constitution

Concurrent list

Freedom of trade , commerce and intercourse

Joint sitting of the two house of parliament

South African Constitution

Constitution amendment procedure

Election of members to the rajya sabha

Preamble: outlining the value premises and vision of the Constitution

The Preamble is like an introduction or preface of a book. As an introduction, it is not a part of the contents but it explains the purposes and objectives with which the document has been written. So is the case with the ‘Preamble’ to the Indian Constitution. As such the ‘Preamble’ provides the guide lines of the Constitution.

The Preamble of the Constitution declares India a Sovereign, Socialist, Secular and Democratic Republic. Besides, it highlights Justice, Liberty, Equality and Fraternity as objectives of the Constitution. The words ‘socialist’ and ‘secular’ were added to the Preamble by the 42nd Constitutional Amendment Act of 1976.

In the Kesavananda Bharati case (1973), the Supreme Court held that Preamble is a part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. In the LIC of India case (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution.

Sovereign

The word sovereign implies that India is neither a dependency nor a Dominion of any other nation but an independent state and it is free to conduct its own affairs, both internal and external. Sovereignty is one of the foremost elements of any independent State. A country cannot have its own constitution without being sovereign. 

The Preamble to the Constitution declares India to be a sovereign country. The Dominion status of India established under the Independent Act of 1947 has been terminated and India is now a full-fledged state with all the characteristics of sovereignty. The sovereignty basically vests in the people of India. It is the people of India that are collectively sovereign. 

The Constitution proclaims the sovereignty of the people in its opening words. The Preamble begins with the words: “We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic…” This idea of popular sovereignty is reaffirmed at several places in the Constitution particularly in the chapters dealing with elections. Article 326 declares that the elections to the House of the People and to the Legislative Assembly of every state shall be on the basis of adult suffrage. As a result, governments at the Centre and in the States derive their authority from the people who choose their representatives for Parliament and the state legislatures at regular intervals. Further, those who wield the executive power of the government are responsible to the legislature and through them to the people. This principle is visible in Article 75(3) and 164(2) where it is written that the Council of Ministers shall be collectively responsible to the House of the People and Legislative Assembly of the State respectively.

However, India is still a member of the Commonwealth of Nations because of an agreement reached at the Commonwealth Prime Ministers’ conference in London in April 1949 which, of course, is an extra-legal voluntary association. As a yet another essential attribute of sovereignty, India can acquire foreign territory (as was done by accepting Sikkim as a part of Indian Federation) and in case of necessity, can cede a part of its territory in favour of a foreign state (as was conceded by the Supreme Court of India on the implementation of the Indo-Pakistan agreement to Berubari Union and exchange of enclaves, AIR 1960 S.C 845.)

Socialist

The word ‘Socialism’ had been used in the context of economic planning. It signifies major role of state in the economy. It also means commitment to attain ideals like removal of inequalities, provision of minimum basic necessities to all, equal pay for equal work. When you read about the Directive Principles of the State Policy, for e.g. Articles 38, 39, 39, 41, 42, 43 etc. you will see how these ideals have been incorporated as well as partly implemented in the Constitution.

It is to be noted that the “socialism” envisaged by the Constitution is not the usual state socialism of Russian or Chinese variety which involves nationalisation of all the means of production, distribution, communication etc. The late Prime minister, Indira Gandhi, explained the nature of Indian socialism: “We have always said that we have our own brand of socialism. We will nationalize the sectors where we feel the necessity. Just nationalization is not our type of socialism.” 

The trend in India has been from a socialistic pattern of society as envisaged in the Avadhi session of Congress in 1955 to a Socialist State by the 42nd Amendment Act of 1976 and to the New Economic Policy of 1991. There has been a trend towards opening up of the economy in line with the world wide trend. It is however argued, that the New Economic Policy of 1991 encompassing liberalization, privatization and globalisation has diluted the socialist credentials of the Indian state.

Secular

The word ‘secular’ was added by the 42nd Amendment Act 1976 and it has been guaranteed in Articles 25-28 of Part III of the Indian Constitution, wherein every individual has the freedom to profess, practice and propagate his own religion subject to restrictions imposed by the state in the interest of public order, morality, health or for social reforms. The state protects all religions equally and does not itself uphold any religion as the state religion.

The then Law Minister, H.R. Gokhle (1976) defined the concept as – “there will be freedom, liberty of faith and worship, whatever religion you belong to, is all what you mean by secularism.” The state will treat each religion equally and it will not have any foundation of religion. The Supreme Court of India has declared secularism to be a basic feature of Indian Constitution in the S R Bommai case1994.

Secularism, in a negative sense, is the anti-thesis of the communal or theocratic state which officially identifies itself with a particular religion. Pakistan, for instance, has proclaimed itself an Islamic state. In its positive aspect, a secular state treats all its citizens alike and gives them equal opportunities. In the context of secularism in India, it is said that ‘India is neither religious, nor irreligious nor anti-religious.’ Now what does this imply? It implies that in India 

1) The state gives equal protection to all religions. 

2) The state does not uphold any particular religion as the state religion. 

3) Freedom of Religion is guaranteed in the constitution. 

4) Equal respect for all religions.

It is clear from the above that secularism enshrined in the Indian Constitution is based on the principle that the state has no religion. In Indira Nehru Gandhi vs Shri Raj Narain & Anr, the Supreme Court of India had reaffirmed this principle. The Court said: “the state shall have no religion of its own”.

Democratic 

As you have noticed while reading the Preamble to the Constitution, the Constitution belongs to the people of India. The last line of the Preamble says ‘…. Hereby Adopt, Enact And Give To Ourselves This Constitution’. In fact the Democratic principles of the country flow from this memorable last line of the Preamble. Democracy is generally known as government of the people, by the people and for the people. Effectively this means that the Government is elected by the people, it is responsible and accountable to the people. The democratic principles are highlighted with the provisions of universal adult franchise under Article 326, free and fair elections conducted by an independent Election Commission under Article 324, fundamental rights, and responsible government. 

Republic

The Preamble also declares India as a Republic. Republic implies that the Head of the State (President in India) is elected by the people (though indirectly in India) and is not a hereditary ruler as in case of the British Monarch.  Both India and UK are democracies and both follow Parliamentary system of government but there is a difference between them. India is a democracy as well as a Republic but UK is only a democracy and not a Republic. United States, on the other hand, is a democracy as well as a Republic just like India even though the method of election of the president is different in both the countries as US follows the Presidential system of government unlike the Parliamentary system in India.

Fundamental rights and Constitutional remedies

Every human being is entitled to enjoy certain rights which ensure good living. In a democracy all citizens enjoy equal rights. The Constitution of India guarantees those rights in the form of Fundamental Rights enshrined in Part III of the Constitution from Articles 12 to 35. 

These rights ensure the fullest physical, mental and moral development of every citizen. They include those basic freedoms and conditions which alone can make life worth living. Fundamental Rights generate a feeling of security amongst the minorities in the country. They establish the framework of ‘democratic legitimacy’ for the rule of the majority. No democracy can function in the absence of basic rights such as freedom of speech and expression. 

Fundamental Rights provide standards of conduct, citizenship, justice and fair play. They serve as a check on the government. Various social, religious, economic and political problems in our country make Fundamental Rights important.

Fundamental Rights are justiciable and are protected by the judiciary. In case of violation of any of these rights one can move to the court of law for their protection. Our Constitution does not permit the legislature and the executive to curb these rights either by law or by an executive order. The Supreme Court (under Article 32) or the High Courts (under Article 226) can set aside any law or executive order that is found to be infringing or abridging the Fundamental Rights. The Fundamental Rights though justiciable are not absolute. The Constitution empowers the government to impose certain restrictions on the enjoyment of our rights in the interest of public good. 

Fundamental rights and their expansion since Independence

Indian citizens, under the Constitution, were guaranteed six fundamental rights – the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. However, since then, the Supreme Court has read the Right to Information, the Right to education, and the Right to Privacy and many more into various fundamental rights, and given a broad interpretation to the right to life under Article 21. Moreover, the Right to Property, which was originally a fundamental right, has been made a legal right under Article 300A.

Successive Supreme Court judgments and amendments have both upheld and expanded the scope of the protection afforded to Indian citizens under Part III of the Indian Constitution.

A key piece in the defence of fundamental rights is the Supreme Court’s landmark judgement in 1973 in the Kesavananda Bharati case – outlining the basic structure doctrine of the Constitution. In a 7:6 majority, the 13-judge SC bench held that although Parliament had the power to amend any part of the Constitution of India, it could not use this power to alter or destroy the “basic structure” of the Constitution – protecting citizens’ fundamental rights from alteration.

Right to food

The right to food as a basic amenity has been interpreted as part of the right to life under Article 21 by the Supreme Court in multiple judgements. The Centre has taken steps to incorporate this in their programmes. In 2013, the Manmohan Singh government passed the National Food Security Act to ensure that 75 per cent of the rural population and up to 50 per cent of the urban population receives subsidized foodgrains under Targeted Public Distribution System (TPDS).

Right to water, shelter and electricity

Right to water, shelter and electricity have also been declared as part of Article 21. Right to clean drinking water, which has been suggested implicitly by the drafters of the Constitution of India as a fundamental resource, also finds several other mentions in the articles of the Constitution. Article 39 (b) and Article 47 task the State to make policies to distribute material resources among the people, raise nutrition levels and the standard of living of citizens and Article 262 empowers Parliament to make laws to solve inter-state river disputes. Article 51(A) tasks citizens with the fundamental duty of preserving the environment.

Similarly, the right to shelter has been declared a part of Articles 21. This right has been reinforced by several national laws – Recognition of Forest Rights Act (2006), Right to Fair Compensation and Transparency in Land Acquisition Act (2013), Protection of Human Rights Act (1993), Slum Areas Act (1956), Street Vendors Act (2014) – and Supreme Court judgements.

In 2021, the Kerala High Court ruled that electricity connection was an integral part of the fundamental right to life (Article 21). The Court noted that this right has been reinforced by the Electricity Act, 2005 which mandates that a distribution licensee must provide an electric connection to any applicant within one month

Right to education

Free and compulsory education of children in the 6 to 14 age group became a fundamental right when Article 21-A was inserted in the 86th Amendment to the Constitution in 2002.

While Indians have been granted educational rights under Articles 29 and 30, the Government of India in 2009 passed the Right to Education Act granting free and compulsory education to all children of the age of six to fourteen years, devoid of any kind of fee or charges or expenses. Under the Act, no school is allowed to hold back or expel any student from the school till he completes elementary education. Physical punishment and mental harassment of children is also prohibited.

Right to Information

The right to information has now been enshrined under Article 19, which guarantees the freedom of speech. Right to Information (RTI) Act was passed in 2005, empowering citizens to access government information and mandating a timely response to citizen requests for such data.

Right to privacy

Holding that the right to privacy was “intrinsic” to the fundamental right to life under Article 21, a nine-judge Supreme Court bench in 2017 in KS Puttaswamy case paved the way for protecting Indian citizens’ privacy. The Supreme Court was hearing pleas challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity. While the Supreme Court has held that the Aadhaar card cannot be mandated as a personal form of identification by the government, several Central programmes collect citizens’ data via Aadhaar for various uses. To define privacy and to protect citizens’ personal data, the Government has recently passed Digital Personal Data Protection Act, 2023, though not brought in force yet.

Directive Principles of State Policy

The Directive Principles of State Policy, which have been adopted from the Irish Constitution, is another unique feature of the Constitution of India. The Directive Principles were included in our Constitution in order to provide social and economic justice to our people. Directive Principles aim at establishing a welfare state in India where there will be no concentration of wealth in the hands of a few. 

The Constitution of India aims to establish not only political democracy but also socio-economic justice to the people to establish a welfare state. With this purpose in mind, our Constitution lays down desirable principles and guidelines in Part IV of the constitution from articles 36 to 51. These provisions are known as the Directive Principle of State Policy. 

As per Article 37, these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.

On November 19, 1948, Dr. Ambedkar, speaking in the Constituent Assembly debate during the drafting of the Constitution, said about the Directive Principles of State Policy (DPSPs) contained in Part IV of the Constitution: “It is the intention of this Assembly that in future both the legislature and the executive should not merely pay lip service to these principles enacted in this part, but that they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country.”

DPSPs aim to realise the socio-economic justice for the people. It is visible in Articles like – 

Article 38 – whereby it is the duty of the state to promote the welfare of the people by securing a social order permeated by justice— social, economic and political—and to minimise inequalities in income, status, facilities and opportunities.

Article 39 – whereby the state shall promote equal justice and provide free legal aid to the poor.

Article 42 – whereby it is the duty of the state to make provision for just and humane conditions for work and maternity relief.

Apart from the articles mentioned in Part IV of the constitution, there are some other articles in the constitution which enjoin on the state the task to make certain policies for people and non-justiciable in nature. Such articles are Articles 335, 350A and 351. 

According to Article 335, the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with affairs of the Union of a State. 

Article 350 A suggests that every state and every local authority within state will provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups. 

Article 351 enjoins the Union to promote the spread of Hindi language and to develop it so that it may serve as a medium of expression of all elements of the composite culture of India.

DPSPs are different from the Fundamental Rights in following respects:

  • The Fundamental Rights are justiciable while the Directive Principles are non-justiciable, that is, they cannot be enforced in a court of law for their violation.
  • The Fundamental Rights aim at guaranteeing political freedom to the citizens by protecting them against excessive state action, while the Directive Principles aim at securing social and economic freedoms by appropriate state action.

Criticism of DPSPs

DPSPs came under criticism during the making of the Constitution due to their non-enforceability.  Multiple members had argued in the Constituent Assembly debates on DPSPs, that without legal enforceability, the principles would remain mere “pious wishes”. It was contended that socio-economic principles such as these had been ignored and exploited under colonial rule and it was necessary to give them effect in independent India. However, they were made non-justifiable considering that the State may not have enough resources to implement all of them or it may even come up with some better and progressive laws. So it was not considered prudent to impose such duties upon the state which it may find very difficult to fulfill due to scarcity of resources as it is a known fact that India on the eve of independence was left in an impoverished state by the British Colonizers. 

Significance of DPSPs

Despite criticism DPSPs have their utility. According to L M Singhvi, an eminent jurist and diplomat, ‘the Directives are the life giving provisions of the Constitution. They constitute the stuff of the Constitution and its philosophy of social justice’. Granville Austin opined that the Directive Principles are ‘aimed at furthering the goals of the social revolution or to foster this revolution by establishing the conditions necessary for its achievement’. Moreover they act as a moral obligation upon the state and political parties seeking to contest elections have to be mindful of the rights enshrined in the DPSPs.

How far they have been reflected in our policies?

Directive Principles were embedded in the Constitution as ideal and transformative social and economic goals that would be incumbent upon future governments to achieve through their policies. M.C Chagla, former Chief Justice of India during the early years of Independence, had said that “if all these principles are fully carried out, our country would indeed be a heaven on earth.”

Article 38

The first Principle directs the state to promote the welfare of people by creating a social order where there is social, political, and economic justice. It says that the state shall strive to minimise income inequalities and those in status and opportunities among people and regions.

Multiple governments have enacted welfare schemes such as Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the national Public Distribution Scheme, Mid-day Meal Scheme, National Food Security Act, and farm and gas subsidies. However, the debate over welfare schemes versus “freebies” has also been raging continually in the welfare state that India is.

MGNREGA, for example, started by the government in 2006, guarantees 100 days of employment a year in unskilled work to at least one member of every rural household. Parliament was recently informed that the demand for jobs under MGNREGA for May month had increased from 1.64 crore in 2015 to 3.07 crore in 2022. However, more than ₹4 crore was pending from the Centre’s side in wages to the States under the scheme.

While in the case of States, doling out freebies to influence the electorate, experts have said that India could face the prospect of sub-national bankruptcies. The chairperson of the 15th Fifteenth Finance Commission, NK Singh, recently said that ‘cheap’ freebies are expensive for the economy, quality of life, and social cohesion over the long run. Former Chief Justice of India NV Ramana observed that there has to be a ‘financial discipline’ to freebies and they cannot be called welfare schemes.

As for achieving income equality, the World Inequality Report, 2022 revealed that India is now among the most unequal countries in the world. As per the report, 57 per cent of national income was accumulated in the hands of the affluent top 10 per cent of the population.

Article 44

This principle pertains to securing a Uniform Civil Code or a uniform law for all religious communities in personal matters of divorce, marriage, succession and so on. However, the stand taken by Dr Ambedkar in the Constituent Assembly debates has survived the years and India still does not have a UCC — he believed that a UCC was desirable but should, for the moment, remain voluntary. 

Currently, each religion has a separate set of personal laws and the codification of personal laws has historically generated protests. In the Shah Bano case of 1985, the Supreme Court lamented that Article 44 remained a “dead letter”. Now recently in June 2023, 22nd Law Commission of India decided to solicit views and ideas of the public at large and recognized religious organizations about the Uniform Civil Code. 

Article 45

This article says that the State should endeavour to provide free and compulsory education, within 10 years of the Constitution’s commencement, for all children until they complete 14 years of age. However, education was made a right well past 10 years of the Constitution’s coming into force. It was only in 2002, with the 86th Amendment of the Constitution, Article 21A was added, making free and compulsory education for children aged six to 14 years a Fundamental Right. Then in 2009, the Right of Education (RTE) Act was passed. Yet, more than a decade later, there is significant debate about the parameters through which that promise is supposed to be realised. Education Minister Dharmendra Pradhan said in August last year that while 35 crore children were getting educated in schools, there was a whopping 15 crore out-of-school children in the country and roughly about 25 crore population is below the primary definition of literacy, 

Article 39A

The Constitution (42nd Amendment) Act, 1976, inserted Article 39A to provide “equal justice and free legal aid”. To this end, the Legal Services Authorities Act, 1987, was enacted by Parliament and it came into force in 1995 “to provide free and competent legal services to weaker sections of the society” and to “organise Lok Adalats (literally, ‘People’s Court’) to secure justice on the basis of equal opportunity”.

2021 data from the National Legal Services Authority (NALSA) shows that Lok Adalats organised across the country from 2016 to 2020 disposed of 52,46,415 cases, demonstrating speed and efficiency. NLAs also settle a huge number of cases across the country in a single day.

Apart from these, Government has enacted many laws and launched various policies to ensure the realisation of socio-economic justice. 

For example,  

  • The Maternity Benefit Act (1961) in pursuance of Article 42 has been passed to protect the interests of women workers.
  • The Minimum Wages Act (1948), the Payment of Wages Act (1936), the Payment of Bonus Act (1965), the Contract Labour Regulation and Abolition Act (1970), the Child Labour Prohibition and Regulation Act (1986) etc. have been enacted to protect the interests of the labour sections.

Fundamental duties

The original Constitution did not contain the Fundamental Duties. It is a well-established saying that rights have significance only when enjoyed in consonance with the duties. Therefore, Fundamental duties were added to the constitution to make the citizens conscious of their duties while enjoying their rights. These were added by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee. Later, in 2002, one more fundamental duty was added by the 86′h Constitutional Amendment Act of 2002. Consequently, there are, at present, 11 fundamental duties in the Constitution. These are contained in Article 51A of Part IV A. Like the Directive Principles, these are also non-justiciable—the Constitution does not provide for their direct enforcement. Moreover, there is no legal sanction against their violation. 

Parliamentary system of government

India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy, there is a close relationship between the legislature and the executive. Basic tenet of this form of government is that the executive is derived from the legislature and is responsible to it (as enshrined in Article 75). In fact, the executive holds office so long as it enjoys the confidence of the legislature. 

In this form of democracy, the Head of the State (President in India) is a nominal head. Constitutionally the President enjoys numerous powers but in practice it is the Council of Ministers headed by the Prime Minister, which really exercises these powers. The President (as outlined in Article 74) acts on the advice of the Council of Ministers headed by the Prime Minister.

Ivor Jennings called the parliamentary system as ‘cabinet system’ because the cabinet is the nucleus of power in a parliamentary system. It is also known as responsible government or Westminster model of government. The Westminster System takes its name from the Palace of Westminster in London, where the Model Parliament of 1295 was held. England’s Houses of Parliament are still at the Palace of Westminster.

Prime Minister has traditionally been described as ‘primus inter pares’ (first among equals) in relation to the cabinet. However the kind of power and influence that the PM today exercises over the entire politico-administrative system has prompted scholars like Cross-man, Mackintosh and others to describe the parliamentary system of government as ‘prime ministerial government’.

A Federal Polity

The Constitution of India provides for a federal government. A unitary government is one in which all the powers are vested in the Central government and the state governments, if at all exists, derive their authority from the Central government. A federal government, on other hand, is one in which powers are divided between the Central government (i.e. national government or federal government) and state governments by the Constitution itself, and both operate in their respective jurisdictions independently. The United States of America is a federation whereas the United Kingdom (Britain) has a unitary form of government. 

The Constitution of India does not use the term ‘federal state’. Article 1 describes India is a ‘Union of States’.  There is a distribution of powers between the Union/Central Government and the State Governments. Since India is a federation, such distribution of functions becomes necessary. There are three lists of powers (contained in 7th schedule) namely Union List, State List and the Concurrent List. On the basis of this distribution, India may be called a federal system. The independence of the judiciary is an essential feature of a federation so that the constitution could be interpreted impartially. In India, the Supreme Court has been established to guard the constitution which enjoys supremacy. 

Federal System with a unitary tilt

However, in case of Indian federalism, more powers have been given to the Union Government in administrative, legislative, financial and judicial matters. In fact, The Indian federal set up stands out with certain distinctive unitary features. The makers of our constitution while providing for two sets of government at the centre and in the states provided for division of powers favouring the Central Government. Features like appointment of the Governor by the Central Government, single unified judiciary, single citizenship, single constitution for Union and States, All-India Services, Emergency provisions etc. indicate the unitary nature of our federalism.

Thus, the Constitution of India has deviated from the traditional federal system and incorporated a large number of unitary or non-federal features, tilting the balance of power in favour of the Centre. 

This has prompted the constitutional experts to challenge the federal character of Indian Constitution. Prof. K.C. Wheare described the Constitution of India as ‘Quasi- federal’ and remarked that “Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features.” Similarly, Ivor Jennings called it “a federation with a centralising tendency.” Granville Austin, on the other land, described Indian federalism as “Cooperative Federalism.” He said that though the Constitution of India has created a strong Central Government, it has not made the state governments weak and has not reduced them to the level of administrative agencies for the execution of policies of the Central Government. 

Dr B.R. Ambedkar said that Indian political system is both “unitary as well as federal according to the requirements of time and circumstances.” According to him, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ to indicate two things: (i) the Indian federation is not the result of an agreement among the states like the American federation; and (ii) the states have no right to secede from the federation. The federation is union because it is indestructible.

In S.R. Bommai case (1994), the Supreme Court held the Constitution as federal and
characterised federalism as its ‘basic feature’. It observed: “The fact that under the scheme of our
Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the
states are mere appendages of the Centre. The states have an independent constitutional existence.
They are not satellites or agents of the Centre. Within the sphere allotted to them, the states are
supreme. The fact that during emergency and in certain other eventualities their powers are
overridden or invaded by the Centre is not destructive of the essential federal feature of the
Constitution. They are exceptions and the exceptions are not a rule. Let it be said that the federalism
in the Indian Constitution is not a matter of administrative convenience, but one of principle—the
outcome of our own process and a recognition of the ground realities”.

It must also be mentioned here that the Indian federal system is based on the Canadian model and not on the American model.

Provision for independent agencies

The Indian constitution provides for some independent constitutional authorities for the benefit of the people. The Election Commission is an independent authority to conduct the elections fairly. Comptroller and Auditor General is an independent authority to ensure proper spending and accounting of public money. The Union Public Service Commission and State Public Service Commissions are provided by the constitution in order to recruit personnel to the public services at the Union and state level.

Criticism of the Indian Constitution

The Constitution of India, as framed and adopted by the Constituent Assembly of India, has been criticized on the following grounds:

Borrowed Constitution

The critics opined that the Indian Constitution contains nothing new and original. They described it as a ‘borrowed Constitution’ or a ‘bag of borrowings’ or a ‘hotch-potch Constitution’ or a ‘patchwork’ of several documents of the world constitutions. However, this criticism is unfair and illogical. This is because, the framers of the Constitution made necessary modifications in the features borrowed from other constitutions for their suitability to the Indian conditions, at the same time avoiding their faults.

While answering the above criticism in the Constituent Assembly, Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, said: “One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution”.

Thus, regardless of criticism, the Constitution, because of its borrowed character, is like a bouquet with the best flowers picked up from different gardens. Different legal systems have evolved differently, giving rise to various legal principles as the fruit of evolution. The borrowings have been justified and well defended by the constitution-makers. As is widely quoted, Dr. B.R. Ambedkar said the following: “Nobody holds any patent rights in the fundamental ideas of the Constitution.”Thus, borrowing provisions have helped the Constitution to build upon the collective learning of the humankind.

Carbon Copy of the 1935 Act

The critics said that the framers of the Constitution have included a large number of the provisions of the Government of India Act of 1935 into the Constitution of India. Hence, they called the Constitution as a “Carbon Copy of the 1935 Act” or an “Amended Version of the 1935 Act”. For example, N. Srinivasan observed that the Indian Constitution is “both in language and substance a close copy of the Act of 1935”. Similarly, Sir Ivor Jennings, a British Constitutionalist, said that “the Constitution derives directly from the Government of India Act of 1935 from which, in fact, many of its provisions are copied almost textually”. Further, P.R. Deshmukh, a member of the Constituent Assembly, commented that “the Constitution is essentially the Government of India Act of 1935 with only adult franchise added”.

Dr. B.R. Ambedkar answered the above criticism in the Constituent Assembly in the following way: “As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration”.

Un-Indian or Anti-Indian

According to the critics, the Indian Constitution is ‘un-Indian’ or ‘anti-Indian’ because it does not reflect the political traditions and the spirit of India. They said that the foreign nature of the Constitution makes it unsuitable to the Indian situation or unworkable in India. 

In this context, K. Hanumanthaiya, a member of the Constituent Assembly, commented: “We wanted the music of Veena or Sitar, but here we have the music of an English band. That was because our Constitution-makers were educated that way”. 

Similarly, Lokanath Misra, another member of the Constituent Assembly, criticized the Constitution as a “slavish imitation of the west, much more – a slavish surrender to the west”. 

Further, Lakshminarayan Sahu, also a member of the Constituent Assembly, observed: “The ideals on which this draft Constitution is framed have no manifest relation to the fundamental spirit of India. This Constitution would not prove suitable and would break down soon after being brought into operation”.

An Un-Gandhian Constitution

According to the critics, the Indian Constitution is un-Gandhian because it does not contain the philosophy and ideals of Mahatma Gandhi, the father of the Indian Nation. They opined that the Constitution should have been raised and built upon village panchayats and district panchayats. In this context, the same member of the Constituent Assembly, K. Hanumanthaiya, said: “That is exactly the kind of Constitution Mahatma Gandhi did not want and did not envisage”. T. Prakasam, another member of the Constituent Assembly, attributed this lapse to Ambedkar’s non-participation in the Gandhian movement and the antagonism towards the Gandhian ideas.

Elephantine Size

The critics stated that the Indian Constitution is too bulky and too detailed and contains some unnecessary elements. Sir Ivor Jennings, a British Constitutionalist, observed that the provisions borrowed were not always well-selected and that the constitution, generally speaking, was too long and complicated.

In this context, H.V. Kamath, a member of the Constituent Assembly, commented: “The emblem and the crest that we have selected for our assembly is an elephant. It is perhaps in consonance with that our constitution too is the bulkiest that the world has produced”. He also said: “I am sure, the House does not agree that we should make the Constitution an elephantine one”.

Paradise of the Lawyers

According to the critics, the Indian Constitution is too legalistic and very complicated. They opined that the legal language and phraseology adopted in the constitution makes it a complex document. The same Sir Ivor Jennings called it a “lawyer’s paradise”.

In this context, H.K. Maheswari, a member of the Constituent Assembly, observed: “The draft tends to make people more litigious, more inclined to go to law courts, less truthful and less likely to follow the methods of truth and non-violence. If I may say so, the draft is really a lawyer’s paradise. It opens up vast avenues of litigation and will give our able and ingenious lawyers plenty of work to do”.

Similarly, P.R. Deshmukh, another member of the Constituent Assembly, said: “I should, however, like to say that the draft of the articles that have been brought before the House by Dr. Ambedkar seems to my mind to be far too ponderous like the ponderous tomes of a law manual. A document dealing with a constitution hardly uses so much of padding and so much of verbiage. Perhaps it is difficult for them to compose a document which should be, to my mind, not a law manual but a socio-political document, a vibrating, pulsating and life-giving document. But, to our misfortune, that was not to be, and we have been burdened with so much of words, words and words which could have been very easily eliminated.”

Conclusion

The Constitution is the pride of our country and is an embodiment of principles of liberal democracy and secularism, along with elements of social democracy. It ensures protection of cultural, linguistic and religious rights of individuals and communities.

The institutions of the government, established by the Constitution on the framework of the British Raj, have taken root in the Indian soil. Although transplanted, they are today no longer regarded as foreign imports: they have gained legitimacy and widespread acceptance by political parties across the ideological spectrum. 

However, as observed by Atul Kohli, a crisis of governability is also growing in India. Indian governments that have been elected with large majorities have repeatedly failed to translate popular support into effective policies and criminalisation of politics is on the rise. The question is often asked whether it is the constitution that has failed the people or is it our chosen representatives who have failed the Constitution. In this context, Dr. Ambedkar rightly observed: :However good a Constitution may be, it is sure to turn out bad because those who are called to work it happens to be a bad lot. However bad a Constitution may be, it is sure to turn out good because those who are called to work it happens to be a good lot.” Thus, there is a need for the people and political parties to strictly adhere to the values of the Constitution to realise the goals as envisioned in the preamble by the founding fathers of the Constitution.

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