UPSC IAS exam preparation - India's Constitution - Lecture 2

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Outstanding feature of the India Constitution

[हिंदी में पढ़ें ]

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1.0 INTRODUCTION

The constitution of a country like India, in simple terms, is a collection of the legal rules providing the framework for the Government of the country. The strength and stability of a constitution depends largely on its ability to sustain a healthy and peaceful social system and when the occasion demands, facilitate the peaceful transformation of its economic and social order. Its basic objective is to establish a democratic, socialist, secular republic with a view to securing justice, liberty, equality and fraternity to all its citizens. There are many outstanding features which distinguish the Indian constitution from other constitutions even though, as some light-heartedly claim, it has been prepared by "ransacking the constitutions of the world!"

The following are the outstanding features of the Indian Constitution:

1.1 A written constitution

The Republic of India has a written and enacted constitution; it contains 395 Articles, twelve schedules and three appendices. In its present form it covers 254 octavo pages. Like the constitution of the United States of America, Canada and France, India too has a written constitution, though it differs from those documents in many respects.

1.2 Dynamic

Original features of the constitution have been substantially modified by 100 amendments upto April 2016. The 42nd, 43rd and 44th amendments from 1976-1978 have practically recast the constitution.

1.3 The longest known constitution

The constitution of India has the distinction of being the most lengthy and detailed constitutional document the world has so far produced. The original constitution contained as many as 395 Articles and 8 Schedules. It has been the endeavor 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 entire U.S. Constitution originally comprised only 7 Articles, the Australian 128 Articles, and the Canadian 147 Articles, the constitution of India in its original form consisted of 395 Articles. As a result of some amendments made since then, some new Sub-Articles have been added and some old ones repealed. 

The reasons for the length of the Indian constitution are:

1. 1.Framers sought to incorporate the accumulated experience of all the known constitutions and avoid the loopholes.
2. 2.Vastness of the country, its diversity and peculiar problems; One entire part (PART XVI) relates to SCs, STs and OBCs; Another part (PART XVIII) relates to official languages.
3. 3.Relations between Union and States exhaustively codified to eliminate conflicts as far as possible.

1.4 Administrative provisions

Detailed administrative provisions laid down in the GOI Act, 1935 have been incorporated in the Indian constitution. The framers had the apprehension that the constitution might be perverted unless some form of administration was also included in it. “... It is perfectly possible to pervert the constitution without changing the form of administration.”

1.5 Popular Sovereignty

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". The idea is reaffirmed in several places in the constitution, particularly in the chapter dealing with elections. Article 326 declares that 'the election to the House of people and to the Legislative Assembly of every state shall be on the basis of adult suffrage’. As a result, Government at the centre and in the states derives their authority from the people who choose their representatives for parliament and the state legislatures of regular intervals. Further, those who wield the executive power of the government are responsible for the legislature and through them to the people. Thus, in the affairs of the state, it is the will of the people that prevails ultimately and this is the principle of popular sovereignty.

1.6 Sovereign Democratic Republic

The preamble of the constitution declares India to be a sovereign democratic republic. It is ‘Sovereign’ since India has emerged as a completely independent state. The word 'Democratic' signifies that the real power emanates from the people. The constitution introduces to the country the right to elect their representatives for the union Parliament and state legislatures at the time of periodical elections to be held every five years. The world 'Republic' is used to denote that the state is headed not by a permanent head like the queen of Britain but by a President indirectly elected by the people.

1.7 Cabinet Government combined with a Presidential Head

The constitution establishes a cabinet type of Government, both at the centre and at the units. The most distinctive feature of a Cabinet system of government is the complete and continuous responsibility of the executive to the legislature. The cabinet is composed of the Prime Minister, who is the chief of the executive and his senior colleagues who share the responsibility with him for the formulation and execution of the policies of the Government. 

The cabinet functions under the concept of collective responsibility. Under the Cabinet system the Head of the cabinet occupies a position of great dignity, but practically all authority nominally vested in him is exercised by the cabinet. The unitary and collective responsibility of the cabinet is composed of the Prime Minister, who is the keystone of the cabinet arch. The real merit of cabinet system is that the executive being responsible to the legislature is always being watched.

1.8 Both Rigid and Flexible

The Indian constitution is partly rigid and partly flexible. The procedure said down by the constitution for its amendment is neither very easy, as in England, nor very rigid as in the United 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. It is only the amendment of few of the provisions of the constitution that requires ratification by the state legislatures and even then ratification by only half of them would suffice. On the other hand, the American Constitution requires ratification by 3/4 th of the States. That makes it very rigid. The rest of the Indian constitution may be amended by the special majority of the Union Parliament i.e. a majority of not less than 2/3 rd of the members of each of the two Houses (Lok Sabha and Rajya Sabha) present and voting, which again must be a majority of the total membership of the House. The very fact that within a period of 65 years the Indian constitution has been amended 100 times proves that it is quite flexible, and can accommodate necessary changes as per changing times.

1.9 Secular State

A secular state has both negative and positive aspects. Negatively, it is the antithesis of a communal or theocratic state which officially identifies itself with a particular religion. In a secular state, there is no official or state religion. In its positive aspect, a secular state treats all its citizens alike and tries to give them equal opportunities. The state has no official religion. No discrimination can be made on the basis of religion, faith, caste, color and sex. Every citizen is equal before the law.

1.10 A Federal system with Unitary bias

The most remarkable achievement of the Indian constitution is to confer upon a federal system the strength of a unitary government. Though normally the system of government is federal, the constitution enables the federation to transform into a unitary state. The constitution of India establishes a federal polity which has been created by dividing the country into states and allocating them functions as specified in the constitution. There is a dual polity and division of powers between the centre and the states.

The Indian constitution has a unitary bias, for instance, after distributing the legislative powers in three lists; the residual subjects are left with the Union. Even in matters in the concurrent list, the union Government has the final say. The Parliament in India has the proverbial might to change the boundaries of the states. The centre can at any time declare emergency in the states. The Governors are appointed by the President. Thus, the “Centre” is pretty strong.

1.11 Universal Adult Franchise without communal representation

The adoption of universal adult suffrage, without any qualification either of sex, property, taxation or the like, is a bold experiment in India, having regard to the vast extent of the country and its population, with on overwhelming illiteracy rate. The suffrage in India is wider than that in England or the United States. This is a great experiment.

1.12 Compromise between Judicial Review and Parliamentary Sovereignty

Parliament in India is not as supreme as the British parliament. At the the same time the judiciary in India is not as supreme as in the United States of America which recognizes no limit on the scope of ‘Judicial Review’. The Indian constitution wonderfully adopts the via media between the American system of ‘judicial supremacy’ and the English principle of ‘parliamentary supremacy’, by endowing the judiciary with the power of declaring a law as unconstitutional if it is beyond the competence of the legislature according to the distribution of powers provided by the constitution, or if it is in contravention of the fundamental rights guaranteed by the constitution, but at the same time depriving the judiciary of any power of ‘judicial review’ of the wisdom of legislative policy. Thus, it has avoided impressions like due process and made fundamental rights such as that of livery and property subject to regulation by the legislature.

1.13 Independence of Judiciary

The framers of the constitution were aware that democratic freedoms were meaningless in the absence of an independent machinery to safeguard them. No subordinate or agent of the Government could be trusted to be just and impartial in judging the merits of a conflict in which the Government itself was a party. Similarly, a judiciary subordinate either to the centre or the states could not be trusted as an impartial arbiter of conflicts and controversies between the centre and the states. These were the compelling reasons for the creation of an independent judiciary as an integral part of the constitution and for the adoption of judicial independent as a basic principle of the constitution. Over time, this feature of the Indian constitution has proven a great help to the citizens, as they can rely on the judiciary for a final, disinterested solution to serious legal grievances. 

1.14 The concept of constitutional remedies

A writ means an order, a warrant or anything that is issued under an authority. The Supreme Court's jurisdiction to issue writs is mentioned in Article 32 of the Indian Constitution. Article 32(3) confers the power to parliament to make law empowering any court to issue these writs. But this power has not been used and only Supreme Court by Article 32 (2) and High Courts (Article 226) can issue writs. However the main difference is that a Supreme Court can issue a writ only if fundamental rights have been violated whereas a High Court can issue a writ when any of the rights have been violated. Hence it is said that the powers of a High Court to issue a writ are more wide-ranging than the powers of the Supreme Court. The various types of writs are

Writ of Habeas Corpus

Habeas corpus literally means 'you may have the body'. It is the most valuable writ for personal liberty and is a remedy available to a person who has been confined without legal justification. The writ of habeas corpus enables the courts to require the authority to produce the person before the court.  It provides immediate relief from unlawful detention whether in prison or private custody.

Writ of Certiorari

If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the aggrieved party can petition the court to issue a writ of certiorari. The writ of certiorari issued to subordinate judicial or quasi- judicial body when they act:

1. 1.Without or in excess of jurisdiction;
2. 2.In violation of the prescribed procedure;
3. 3.In contravention of principles of natural justice;
4. 4.Resulting in an error of law apparent on the face of record. 

Writ of Quo Warranto

The term Quo-Warranto literally means "by what warrants (rights) ?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. Quo Warranto writ is issued against a person who occupies a public office in spite of not possessing the required qualifications or suffering from a disqualification. It is issued to restrain the authority or candidate from discharging the functions of public office. 

A writ of quo-warranto is to be issued when:

1. 1.The office is public and of a substantive nature;
2. 2.The office is created by the State or by the Constitution itself; and
3. 3.The respondent must have asserted his claim to the office.

Under the authority provided by this writ the court can also declare an office to be vacant.

Writ of Prohibition

A writ of prohibition is a writ directing a subordinate to stop doing something that they may not do, according to law, but are doing. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction. The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made.

Writ of Mandamus 

Mandamus literally means a command. In case a public authority is either not doing what he is supposed to do or is doing something which he is not supposed to a writ of Mandamus can be issued by the Court instructing the public authority to either act in a specific manner or not act in a specific manner. It must be noted that a writ of mandamus or command may not be issued against the Indian President or Governor.

2.0 Fundamental Rights

Like the constitution of the United States of America, the constitution of India also includes a separate chapter guaranteeing ‘Fundamental Rights’ to all the citizens. These rights are justiciable and inviolable. They are binding on the legislature as well as on the executive. If any of the rights is violated, a citizen has the right to seek the protection of the judiciary. Act of the legislature or odder of the executive can be declared rule and void if they violate any of the fundamental rights guaranteed to the citizens by the constitution. The rights are:

1. Right to equality (Articles 14-18) including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles;
2. Right to freedom (Articles 19-22) which includes speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality, right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases);
3. Right against exploitation (Articles 23-24) prohibiting all forms of forced labour, child labour and traffic in human beings;
4. Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes;
5. Cultural and Educational rights (Articles 29-30) preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and
6. Right to constitutional remedies (Articles 32-35) for enforcement of Fundamental Rights.

3.0 Fundamental Duties

The 42nd Amendment Act introduced ‘Fundamental Duties’ to circumscribe the fundamental rights even thought the duties as such cannot be judicially enforced. The incorporation of fundamental duties in the constitution was thus an attempt to balance the individual's civic freedoms with his/her civic obligations and thus to fill a serious gap in the constitution.

These Fundamental Rights have been provided at the cost of some fundamental duties. These are considered as the duties that must be and should be performed by every citizen of India. These fundamental duties are defined as:

It shall be the duty of every citizen of India:

1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; 
2. To cherish and follow the noble ideals which inspired our national struggle for freedom; 
3. To uphold and protect the sovereignty, unity and integrity of India; 
4. To defend the country and render national service when called upon to do so; 
5. 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; 
6. To value and preserve the rich heritage of our composite culture; 
7. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; 
8. To develop the scientific temper, humanism and the spirit of inquiry and reform; 
9. To safeguard public property and to abjure violence; 
10. 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. 

3.1 Directive Principles of State Policy

This feature has been taken from the Irish constitution. The philosophy behind the ‘Directive Principles’ is that the state and every one of the agencies are commanded to follow certain fundamental principles while they frame their policies regarding the various fields of state activity. These principles on the other hand, are assurances to the people as to what they can expect from the State and on the other are directives to the Governments (central and state) to establish and maintain a new "social order in which justice, social economic ad political, shall inform all the institution of national life." These principles are classified into four categories

1. Economic and social principles
2. Gandhian principles
3. Principles and policies relating to international peace and security
4. Miscellaneous

4.0 CRITICISM OF THE INDIAN CONSTITUTION

The constitution of India is remarkable for many outstanding features which distinguish it from other constitutions, even though there were members in the Constituent Assembly who criticized the constitution which was going to be adopted as ‘a slavish imitation of the West’ or not suited to the genius of the people of India.  The criticism is as follows:

First: The constitution of India was criticized on the ground that it is the most lengthy and detailed constitutional document the world has so far produced. Brevity was found missing.

Second: The constitution of India was called a carbon copy of the Act of 1935. The fathers of the constitution have borrowed a large number of provisions from the Act of 1935 and made them part of the new constitution.

Third: One of the frequent criticisms of the constitution was that it was a lawyer's paradise! It maybe true that the constitution is a complex document. The language in which it was drafted is that which is familiar only in courts of law.

Fourth: The constitution has been criticized by a small but vocal section on the ground that it is un-Gandhian. The constitution did not embody the principles for which Mahatma Gandhi stood or the ideology of the Indian National Congress.

Fifth: It is said that the Indian constitution is a bag of borrowings or is a more paper-and-scissors work. The parliamentary form of government is borrowed from the British constitution while federalism and judicial review is borrowed from the U.S. constitution. Whether such cut-and-paste can work in the real world is not clear.

Sixth: According to some critics, the centre has been made too strong. There is too much centralization and the states have been reduced to municipalities.

Seventh: The new constitution was called 'un Indian' in that no part of the constitution represented the ancient polity of India, its genius and the spirit of its hallowed and glorious traditions.

In spite of differing views, the constitution has served India wonderfully well since 1950.

5.0 IMPORTANT DOCTRINES

5.1 The Doctrine of Eclipse

The Doctrine of Eclipse provides that in case a law which existed before India's constitution was drafted is found to be inconsistent with the Fundamental rights enshrined in the Constitution, they would be invalid to the extent of such inconsistency. The main issue to be noted here is that the pre-constitutional law does not become void ab initio, it becomes void only to the extent of the conflict.  When a Court strikes down a part of law, it becomes unenforceable to the extent it has been struck down. Hence, an 'eclipse' is said to be cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.

If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

In Keshava Madhava Menon Vs. State of Bombay the issue was that there was a previous law which was in conflict with the freedom guaranteed under Article 19(1) (g) of the Constitution of India. The restrictions imposed under the pre-constitutional law could not be considered justifiable as explained by clause (6) of Article 19. The Honorable court held that this did not make the pre-constitutional law void in toto but only to the extent of such inconsistency.

A similar view was adopted by the courts in the case of Bhikaji Narain Dhakras and others Vs. The State of Madhya Pradesh. In this case the honorable court commented that "Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right".

The Supreme Court of India, in P Ratinam case, has held Section 309 of the Indian Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However, a constitutional bench in Gian Kaur case reversed this decision and held the section as constitutional whereby the eclipse was removed and it became operative again.

5.2 The Doctrine of Repugnancy

Repugnancy in Constitutional terms can be defined as a conflict between two or more parts of law. Article 254 of the Indian Constitution firmly entrenches the Doctrine of Repugnancy in the Indian constitution. Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 

Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.
2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated in List II or the State List in the Seventh Schedule.
3. The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.
4. Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

The Supreme Court in M. Karunanidhi Vs. Union of India summarized Article 254(1). It stated that "where the provisions of a Central Act and a State Act in the Concurrent list are fully inconsistent and absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy." It also laid down conditions to be laid down before repugnancy arises which were

1. There should be a clear and direct inconsistency between the Central Act and the State Act.
2. Such an inconsistency should be absolutely irreconcilable.
3. The inconsistency between the provisions of the two Acts should of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.

5.3 The Doctrine of Severability

The Doctrine of severability provides that if an enactment cannot be saved by construing it consistent with its constitutionality, it may be seen whether it can be partly saved. If a part of a statute turns out to be void, it should not affect the validity of the rest of it.

In R.M.D. Chamarbaugwalla v. The Union of India (UOI) the court stated that a significant principle of determination of constitutionality is whether the courts are reluctant to declare a low invalid on the grounds of unconstitutionality. The Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional.

The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable

In the case of Suresh Kumar Koushal and another v. Naz Foundation and Others the court observed that while the High Court and the Supreme Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality.

In Bhikaji Narain Dhakras And Others v. The State of Madhya Pradesh and another the honorable court observed that "Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right".

5.4 The Doctrine of Colourable legislation

The doctrine of colourable legislation is based on the rationale that what cannot be done directly cannot also be done indirectly. If the legislature having no power to legislate frames a legislation in a way that it is camouflaging the same as to make it appear to fall within its competence, the legislation thus enacted may be regarded as colourable legislation.

In the case of K.C Gajapti vs state of Orissa the honourable Supreme Court. while explaining the doctrine stated that "if the constitution of a state distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. Such transgression may be patent , manifest and direct, but may also be distinguished, covered and indirect and it is the latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements."

Over a period of time various judicial pronouncements have laid down the tests to determine whether a particular legislation is colourable. These tests are:

1. The court must look to the substance of the impugned law not the nomenclature which has been given to it by the legislature.
2. A colourable legislation is not concerned with motive. The main concern is whether it is ultra vires the legislature. Similarly if the legislature is competent enough to enact a particular law, then whatever motive which impelled it to act are irrelevant.

5.5 The Doctrine of Waiver

The Doctrine of Waiver is based on the rationale that a man not under legal liability is the best judge of his own interest. The concept of Fundamental Rights is a very important feature of the Constitution of India. These rights though sacrosanct are not absolute in nature. Our Constitution imposes various imposes various reasonable restrictions upon the exercise of fundamental rights.

According to the doctrine of waiver, a right can be waived subject to the condition that no public interest is involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental rights is a bit different. The fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the 'doctrine of waiver' cannot apply to provisions of law which have been enacted as a matter of Constitutional policy. This observation was made by the court in Basheshr Nath v. Income Tax commissioner.

Article 14 cannot be waived for it is an admonition to the state as a matter of public policy with a view to implement its object of ensuring equality. No person can therefore, by an act or conduct free the state of the solemn obligation imposed on it by the constitution. According to the constitution there is not distinction between fundamental rights enacted for the benefit of an individual and fundamental rights enacted in public interest. 

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