Salient Features of the Constitution

Introduction

The Indian Constitution is a unique blend of borrowed principles and indigenous ideas, tailored to India’s diverse needs. While it has evolved through several amendments, the 42nd Amendment (1976) is known as the “Mini-Constitution” for introducing major changes.

However, in the Kesavananda Bharati case (1973), the Supreme Court ruled that while Parliament can amend the Constitution, it cannot alter its “basic structure.” This ensures a balance between change and stability, making the Indian Constitution both dynamic and enduring.

 1. Lengthiest Written Constitution

• Unlike Britain’s unwritten constitution, India’s Constitution is the most detailed written constitution in the world.
• Originally 395 Articles in 22 Parts and 8 Schedules (1949); now 470 Articles in 25 Parts and 12 Schedules (post amendments).
• Factors contributing to its length:
  • Geographical diversity – Governs a vast and diverse country.
  • Historical influences – Derived from the Government of India Act, 1935.
  • Single Constitution for both Centre and States – Unlike the U.S., where each state has its own constitution.
  • Legal experts in the Constituent Assembly – Preferred detailing over ambiguity.

2. Drawn from Various Sources

The Indian Constitution is often called a “bag of borrowings”, as it incorporates elements from multiple global constitutions:

Source	Provisions Borrowed
Government of India Act, 1935	Federal structure, emergency provisions, judiciary, governance structure.
British Constitution	Parliamentary system, Rule of Law, Bicameralism, Cabinet government.
US Constitution	Fundamental Rights, Judicial Review, Impeachment, Independence of the judiciary.
Irish Constitution	Directive Principles of State Policy (DPSP), Presidential election method.
Canadian Constitution	Strong Centre, Residuary powers, Appointment of Governors.
Australian Constitution	Concurrent List, Trade & Commerce provisions, Joint Sitting of Parliament.
Weimar (German) Constitution	Emergency provisions, Suspension of Fundamental Rights.
Soviet (USSR) Constitution	Fundamental Duties, Socialist ideals.
French Constitution	Republic, Ideals of Liberty, Equality, and Fraternity.
Japanese Constitution	“Procedure established by law” in Article 21 (Right to Life).

3. Blend of Rigidity and Flexibility

• Rigid Constitution – Certain provisions require special majority + state ratification (e.g., federal structure amendments under Article 368).
• Flexible Constitution – Some provisions can be amended by simple majority (e.g., parliamentary procedures, citizenship laws).

4. Synthesis of Parliamentary Sovereignty and Judicial Supremacy

• British Influence: The doctrine of parliamentary sovereignty is derived from the British Parliament, where laws passed by Parliament are supreme and cannot be questioned.
• American Influence: Judicial supremacy, as seen in the U.S., allows courts to strike down laws that violate the Constitution.
• Indian Context: India has a balanced synthesis of both principles:
  • The Supreme Court can review and declare parliamentary laws unconstitutional through judicial review.
  • The Parliament can amend major portions of the Constitution using its constituent power (except the Basic Structure Doctrine).
• Key Difference:
  • The U.S. follows “due process of law”, which gives broader judicial review power.
  • India follows “procedure established by law” (Article 21), limiting judicial interference unless laws violate fundamental rights.

5. Integrated and Independent Judiciary

• Unified Judicial System:
  • Unlike the U.S., which has separate federal and state courts, India has a single integrated system enforcing both central and state laws.
  • Hierarchy of Courts:
    • Supreme Court (Apex Court)
    • High Courts (State Level)
    • District & Subordinate Courts (Lower Judiciary)
• Functions of the Supreme Court:
  • Federal Court (settles disputes between the Union and States).
  • Highest Court of Appeal (final decision on civil & criminal cases).
  • Protector of Fundamental Rights (issues writs under Article 32).
  • Guardian of the Constitution (ensures constitutional supremacy).
• Provisions Ensuring Independence:
  • Security of tenure (judges cannot be easily removed).
  • Fixed service conditions (salary and perks cannot be reduced).
  • Expenses charged on Consolidated Fund of India (no executive interference).
  • No discussion on judge’s conduct in Parliament (except impeachment cases).
  • Ban on post-retirement practice (to avoid conflict of interest).
  • Power to punish for contempt of court (ensuring authority).
  • Separation of Judiciary from Executive (Article 50).

6. Fundamental Rights (Part III: Articles 12–35)

Nature and Importance:

• Promote Political Democracy and prevent government overreach.
• Justiciable – citizens can directly approach courts if rights are violated.
• Limitations on Executive and Legislature – prevents arbitrary actions.

Six Fundamental Rights:

• Right to Equality (Articles 14–18)
  • Article 14: Equality before law & equal protection of laws.
  • Articles 15–16: Prohibition of discrimination & equality of opportunity.
  • Article 17: Abolition of Untouchability.
  • Article 18: Abolition of Titles (except military/academic).
• Right to Freedom (Articles 19–22)
  • Article19: Six freedoms (speech, assembly, association, movement, residence, profession).
  • Article 20: Protection against self-incrimination & retrospective laws.
  • Article20: Right to Life & Personal Liberty (expanded through judicial interpretation).
  • Article 22: Protection against arbitrary arrest & detention.
• Right against Exploitation (Articles 23–24)
  • Prohibits human trafficking, forced labour & child labour.
• Right to Freedom of Religion (Articles 25–28)
  • Freedom of conscience and right to practice, profess, and propagate religion.
• Cultural & Educational Rights (Articles 29–30)
  • Protects minority rights to establish and administer educational institutions.
• Right to Constitutional Remedies (Article 32)
  • Heart and soul of the Constitution (Dr. B.R. Ambedkar).
  • Supreme Court can issue writs:
    • Habeas Corpus – unlawful detention.
    • Mandamus – directing officials to perform their duties.
    • Prohibition – stopping lower courts from exceeding jurisdiction.
    • Certiorari – transferring a case to a higher court.
    • Quo Warranto – questioning a person’s legal authority to hold an office.

Limitations on Fundamental Rights:

• Not Absolute – subject to reasonable restrictions.
• Can be curtailed/repealed by Parliament (except Basic Structure).
• Suspended during National Emergency (except Articles 20 & 21).

7. Directive Principles of State Policy (DPSP) – Part IV

• Inspired by the Irish Constitution  and Gandhian philosophy.
• Aim: To establish social and economic democracy and a welfare state.
• Not justiciable (courts cannot enforce them).
• State’s duty to apply them in policymaking (Article 37).
• Moral and political obligation rather than a legal one.

Classification of DPSPs:

• Socialist Principles:
  • Article 38: Promote welfare state.
  • Article 39: Ensure equal pay, adequate livelihood, fair distribution of wealth.
  • Article 41: Right to work, education, and public assistance.
  • Article 43: Living wage for workers.
  • Article 47: Improve public health, ban intoxicating drinks and drugs
• Gandhian Principles:
  • Article 40: Establish Panchayati Raj institutions.
  • Article 43: Promote cottage industries.
  • Article 46: Protect SC/ST and weaker sections.
  • Article 48: Prohibit cow slaughter.
• Liberal-Intellectual Principles:
  • Article 44: Uniform Civil Code (UCC).
  • Article 45: Free and compulsory education (originally up to 14 years).
  • Article 48A: Protect and improve the environment.

Significance of DPSPs:

• Provides policy guidance for governance.
• Creates socio-economic justice.
• Ensures balanced development of all sections of society.

 Fundamental Rights vs. DPSP:

• Minerva Mills Case (1980):
  • Balance between FRs & DPSP is the Basic Structure of the Constitution.
  • Neither can override the other completely.
  • Judicial interpretation ensures harmony between both.

8. Fundamental Duties (Part IV-A, Article 51A)

• Originally, the Constitution did not include Fundamental Duties.
• Added by the 42nd Constitutional Amendment Act, 1976 on the recommendation of the Swaran Singh Committee during the Emergency.
• The 86th Constitutional Amendment Act, 2002 added the 11th Fundamental Duty (compulsory education for children).
• Found in Part IV-A (Article 51A) of the Constitution.

List of 11 Fundamental Duties:

• Respect the Constitution, National Flag, and National Anthem.
• Follow and uphold the ideals of the freedom struggle.
• Protect sovereignty, unity, and integrity of India.
• Defend the country and render national service when required.
• Promote harmony and the spirit of common brotherhood.
• Preserve the rich heritage of Indian culture.
• Protect and improve the natural environment.
• Develop scientific temper, humanism, and spirit of inquiry.
• Safeguard public property and avoid violence.
• Strive towards excellence in all spheres of life.
• Ensure education for children between 6-14 years (added by 86th Amendment, 2002).

Significance of Fundamental Duties:

• Remind citizens that rights come with responsibilities.
• Promote patriotism and discipline among citizens.
• Strengthen national unity and integrity.
• Though non-justiciable, they act as a moral obligation for citizens.
• Serve as a yardstick for interpreting Fundamental Rights in legal cases.

9. A Secular State

• India is a secular state, meaning no religion is recognized as the state religion.
• The term “secular” was added to the Preamble by the 42nd Constitutional Amendment Act, 1976.

Constitutional Provisions Establishing Secularism:

• Preamble: Guarantees liberty of belief, faith, and worship.
• Article 14: Equality before law, no religious discrimination.
• Article 15: No discrimination on grounds of religion.
• Article 16: Equal opportunity in public employment.
• Article 25: Freedom of conscience, right to profess, practice, and propagate religion.
• Article 26: Religious denominations can manage their affairs.
• Article 27: No taxation for promoting a specific religion.
• Article 28: No religious instruction in government-funded institutions.
• Article 29: Protection of distinct language, script, or culture.
• Article 30: Minorities’ right to establish and administer educational institutions.
• Article 44: Uniform Civil Code (UCC) – A directive principle to ensure a common personal law system.

Indian Secularism vs. Western Secularism:

Western Secularism (U.S., France)	Indian Secularism
Strict separation of religion and state	Equal treatment of all religions
No state intervention in religious matters	State can regulate religious practices if against public welfare
Church and State are completely separate	State promotes religious harmony but does not favour any religion

Key Observations:

• Indian secularism follows “Sarva Dharma Sambhava” (equal respect for all religions).
• Unlike the West, the State can intervene in religious matters for social reform (e.g., abolition of untouchability, Triple Talaq ban).
• No communal representation in legislatures (unlike pre-independence era).

10. Universal Adult Franchise

• Every Indian citizen aged 18 and above has the right to vote.
• Introduced in 1950, when many countries still had property-based or gender-restricted voting rights.
• The 61st Constitutional Amendment Act, 1988 reduced the voting age from 21 to 18 years (effective in 1989).

Significance of Universal Adult Franchise:

• Promotes democracy by making elections inclusive.
• Empowers weaker sections (SCs, STs, women, minorities).
• Strengthens national unity by treating all voters equally.
• Encourages political participation and awareness.

Challenges:

• Low voter turnout due to apathy and lack of awareness.
• Use of money & muscle power in elections.
• Illiteracy and misinformation affecting voting choices.
• Booth capturing and election malpractices in some areas.

11. Single Citizenship

• Unlike the U.S. (where citizens have dual citizenship – federal and state), India has only single citizenship.
• Any Indian citizen can reside, work, or contest elections anywhere in the country.
• Ensures national unity and equal rights for all citizens.

Advantages of Single Citizenship:

• Promotes national integration (no division based on state identity).
• Prevents regionalism and separatism.
• Equal rights and responsibilities across India.

Challenges & Concerns:

• Regionalism & Linguistic Conflicts (e.g., North-South divide, demand for separate states).
• Rise of sub-nationalism (e.g., local preference in government jobs).
• Violation of migrant workers’ rights in some states.

12. Independent Bodies

The Constitution establishes several independent institutions to safeguard democracy:

• Election Commission of India (ECI) (Article 324)
  • Conducts free and fair elections for Parliament, State Assemblies, President & Vice-President.
  • Ensures model code of conduct.
  • Resolves election disputes and enforces anti-defection laws.
• Comptroller and Auditor-General of India (CAG) (Article 148)
  • Audits government accounts (Union & States).
  • Reports financial irregularities to Parliament.
  • Acts as the “guardian of the public purse”.
• Union Public Service Commission (UPSC) (Article 315-323)
  • Conducts recruitment exams for All India Services & Central Government Services.
  • Ensures merit-based selection and fairness in hiring.
• State Public Service Commission (SPSC)
  • Conducts recruitment exams for state government jobs.
  • Advises the President on disciplinary matters.
• Provisions Ensuring Independence of These Bodies:
  • Security of tenure (cannot be arbitrarily removed).
  • Fixed service conditions (salaries cannot be reduced).
  • Expenses charged on Consolidated Fund of India (to prevent executive influence).
  • No reappointment after retirement (prevents conflict of interest).

13. Emergency Provisions The Constitution provides for three types of emergencies:

• National Emergency (Article 352): Declared during war, external aggression, or armed rebellion.
• State Emergency (Article 356 & 365): Imposed due to the failure of constitutional machinery in states.
• Financial Emergency (Article 360): Declared during financial instability.

During emergencies, the federal structure transforms into a unitary system, centralizing power with the Union Government.

14.Three-Tier Government

Initially, India had a dual polity (Centre and States), but the 73rd and 74th Amendments (1992) introduced a third tier—local government.

• 73rd Amendment: Added Part IX and the 11th Schedule, recognizing Panchayati Raj institutions.
• 74th Amendment: Added Part IX-A and the 12th Schedule, recognizing Municipalities.

These amendments enhanced grassroots democracy and decentralized governance.

15. Co-operative Societies

The 97th Constitutional Amendment Act of 2011 granted constitutional status to co-operative societies:

• Article 19: Recognized the right to form co-operatives as a fundamental right.
• Article 43-B: Added a new Directive Principle for promoting co-operatives.
• Part IX-B: Introduced Articles 243-ZH to 243-ZT for better governance of co-operatives.

16. Criticism of the Constitution

• A Borrowed Constitution Critics argue that the Constitution is a ‘bag of borrowings’ from various sources. However, the framers adopted these borrowed elements to suit India’s unique conditions.
• A Carbon Copy of the 1935 Act Many provisions are derived from the Government of India Act, 1935. However, these provisions were retained due to their administrative efficacy.
• Un-Indian or Anti-Indian Some critics claim that the Constitution lacks Indian ethos and is influenced by Western ideals. However, it incorporates various traditional elements alongside modern principles.
• An Un-Gandhian Constitution Gandhian principles like decentralized governance and self-sufficient villages were not fully incorporated. However, later amendments strengthened local governance structures.
• Elephantine Size The Constitution is one of the longest in the world, with excessive details. However, its complexity ensures clarity in governance and reduces ambiguity.
• Paradise of the Lawyers The Constitution’s legalistic language makes it complex. While critics argue it fosters excessive litigation, its detailed nature ensures a robust legal framework.