Saturday, 20 October 2012

Salient features of India constitution

The following are the salient features of the Indian Constitution:
Written Constitution
Indian Constitution is a written Constitution. Written constitution is that which is drafted after a prolonged process of discussion by a representative body elected for this very purpose, for example Constituent Assembly of India (1946-49). An unwritten constitution, as in Britain, evolves from popular conventions, customs and traditions along with the social values and ideals.

Ques. 1 : “Indian Constitution lacks originality and rather is drawn from other Constitutions of the world : Do you agree? Support your answer with reasonable arguments?
Ans. The Constituent Assembly, desirous of providing the best features in the Constitution, drew from many sources as shown below
British Constitution
  • Parliamentary form of government
  • Rule of law
  • Procedure established by Law
United States Constitution
  • Charter of Fundamental Rights
  • Federal structure of government
  • Electoral Collage
  • Independence of the judiciary
  • Judicial review
Irish Constitution
  • Directive principles of state policy
Australian Constitution
  • Concurrent List
  • Joint sitting of the Parliament
French constitution
  • Ideals of Liberty, Equality and Fraternity
Canadian Constitution
  • A quasi-federal form of government a federal system with a strong central government
  • The idea of Residuary Powers with centre
Constitution of the Soviet Union
  • Fundamental Duties (Art. 51-A) on the recommendations of Sardar swaran Singh Committee (1976)
Other Constitutions
  • Emergency Provision from Weimar Constitution
  • Amendment of Constitution from South Africa
  • Procedure established by Law from Japan
Ques. 2 : Indian Constitution is the most voluminous in the world. Discuss?
Ans. Indian Constitution is the lengthiest in the world in terms of the number of articles. Originally, at the time of being adopted, it consisted of 395 articles but after 97 amendments (2012), it presently has more than 440 articles. There are 12 Schedules to amplify and support the contents in the Articles.
The reasons for the voluminous nature of the Constitution are
  • There are detailed provisions for various aspects of administration in order to minimise conflict and confusion.
  • Being a democratic country, there is a great need to lay down elaborately the rights of the individuals. Hence, there is a seperate chapter on Fundamental Rights.
  • A federal constitution has to detail the rights and jurisdictions of the centre and states. It is more so in India where much care is taken to spell out in detail the functions of the states and centre. The idea is to prevent any constitutional conflicts and crisis in the working of the Constitution
  • Since the Constitution draws from many Constitutions as shown above, it is bound to be lengthy.
  • The size and diversity of the country with a pluralist tradition require that Constitution promote the same with detailed provisions. For example, language policy.
  • Independent bodies Election Commission, Union Public Service Commission, Comptroller and Auditor General of India have been set up with elaborate provisions for powers, independence etc which are in other Constitutions not a part of the Constitution but only statutes.
Ques. 3 : Presidential system of democracy can at best provide secondary solution to the existing challenges to the Indian parliamentary democracy. Critically examine the statement in light of recent developments?
Ans. The Constitution of India adopts Parliamentary system of democracy in order to represent the pluralist tradition and interests of the country. In the parliamentary form, members of legislature provide the executive. That is, the Council of Ministers who make up the executive are necessarily drawn from legislature in order to enforce the highest forms of popular accountability. The Council of Ministers is collectively responsible to the legislature. Council of Ministers enjoy power till they have support of the popular house Lok Sabha of India. There are many devices in the Constitution and various statutes and rules with the Parliament holds the executive answerable. As a last resort, no-confidence motion is provided to vote out the council of ministers and either replace it with another party or coalition or have a general election to the Lok Sabha.
Ques. 4 : Indian polity is neither federal nor unitary. Examine the statement with examples from recent past.
Ans. The Constitution contains all the basic features of a federation as shown below
  • Set up a dual polity- the Union Government and the State Governments
  • Legislative, administrative and financial powers are divided between the two levels of government. All legislative powers are classified into three lists-the Union List, the State List and the Concurrent List. Subjects of national importance like banking, national security, currency, defence, railways, post and telegraph, foreign affairs, citizenship, etc have been given to the Union Parliament , being placed in the Union List. Items of provincial and regional importance like police, local self government, agriculture, law and order, health and entertainment have been given to the States, being a part of the State List. Neither can legislate on the other’s List. However, under rare and special circumstances, Union Parliament can legislate on items in the State List. Concurrent List has subjects which are of common interest such as socio economic planning, marriage and divorce, adoption, succession, forests, transfer of property, preventive detention, education, civil and criminal law, etc. The Union Parliament and the State Legislatures enjoy co-equal powers to make laws in regard to this List. However, if there is a conflict between a Union law and a State law, the law made by the Union Parliament would prevail over the State law, according to the doctrine of federal supremacy.
  • Each level of government being provided with its own sources of revenue
  • Supremacy of the written Constitution
  • Rigid constitution
  • Independent judiciary to settle disputes among the federal units. Supreme Court under Art. 131 has exclusive and original jurisdiction in federal matters.

    Even while the above listed essential features of federalism are found in the Indian Constitution, there is a strong unitary tilt. For example, states are not – ‘indestructible’ as in the USA. Union Parliament can not only alter the area and boundaries of a state but can also abolish a state. The Parliament has the residuary powers- that is powers that may be left out of the three Lists detailed above. Emergency powers (Art. 352 and 356) of the Union Government can also turn the country into a unitary system.

    Since 1992, with the making of the 73rd and 74th Amendment Acts related to Panchayatiraj and Nagarapalika institutions respectively, Indian Constitution has added another tier to the federal system. However, powers of finances of the Panchayats are still left to the discretion of the state governments.
Ques. 5 : “Our Constitution is to be as solid and permanent’ as we can make it, yet there is not permanence in it”. Examine?
Ans. An amendment to the Constitution may become necessary for any reason like national security, social progress, national integration and so on. The method to amend the Constitution is rigid in a federal polity- that is a special and elaborate method is prescribed involving both the Union and the States. A flexible constitution is one that can be amended like an ordinary law - states are not involved. Indian Constitution is rigid as far as amendment to the federal features are concerned. It is flexible for all other features, that is a special majority in the Parliament is enough for the Amendment Bill to be passed. Jawaharlal Nehru, while justifying this nature of the Constitution, said, “Our Constitution is to be as solid and permanent’ as we can make it, yet there is no permanence in a Constitution. There should be a certain amount of flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living vital organic people.”
Welfare State
At the time of Independence India was an impoverished country. There was large scale poverty and deprivation. Historically inherited social divisions marked the society. Since markets were not well developed and many were outside the economic system, Government took upon itself the responsibility to provide welfare to the vast majority of vulnerable people. Constitution has many features that commit the country to a welfare State. The Preamble to the Constitution was amended in 1976 (Forty-second Amendment Act, 1976) to insert the goal of socialism. Directive Principles of State Policy (Part IV) aim at the establishment of a Welfare State in India. Progressive taxation, developmental interventions like the various flagship programmes of the government (MGNREGS), nationalization of banks in 1969 and 1980, land reforms and various subsidies are meant to establish a welfare state. Affirmative action (positive discrimination) by the Government in favour of the socially marginalised like dalits is an important aspect of the welfare state.
Fundamental Rights
As a hallmark of the democracy that the Constitution establishes, Fundamental Rights are provided in Part III to citizens (Art.15,16,19,29 and 30) and others. They are fundamental to the development of the individual and the society and so they are called Fundamental Rights. They are given extraordinary protection with the Supreme Court being made directly accessible under Ar’t.32 and High Courts under Art.226 to issue writs to restore the Fundamental Rights in case they are violated.
The Fundamental Rights conferred by the Constitution are broadly classified under the following groups:
  • The Right to Equality;
  • The Right to Freedom;
  • The Right against Exploitation;
  • The Right to Freedom of Religion;
  • Cultural and Educational Rights; and
  • The Right to Constitutional Remedies.
The Right to Property was deleted as a Fundamental Right by the Forty-fourth Constitution Amendment Act, 1978 and is made into an ordinary Constitution right (Art.300A).
Directive Principles of State Policy
Borrowed from the Irish Constitution, Directive Principles of State Policy constitute a distinctive feature of Indian Constitution. DPSPs are a set of social and economic obligations imposed on the Government- Union and State- to establish a welfare society. They are not justiciable (non-implementation of the DPSPs can not be challenged in courts) but are fundamental to the governance of the country (Art.37). Democratic decentralization through local self government, equitable distribution of wealth, welfare of workers, uniform civil code, improvement in the health standards of the people, commitment to contribute to international peace are some of the obligations that the DPSPs sets for the Government.
Many amendments to the Constitution as well as landmark judgements of the Supreme Court have contributed to the implementation of the Directive Principles For example, 73rd and 74th Amendment Act, 1992 for Panchayatiraj institutions.
Ques. 6 : “A natural corallary of a pluralist and democratic Constitution is secularism”. Discuss?
Ans. A natural corollary of a pluralist and democratic Constitution is secularism which has the following meaning
  • State has no official religion
  • State and religion are separate
  • State has an equi-distant policy towards all religions
  • All individuals have the right to pursue the religion of their choice
Additionally, in India minorities- both religious and linguistic- are given special protection (Art.29 and 30) so as to preserve the diversity within unity.
Unified, Hierarchial And Independent Judiciary
Indian Constitution provides for a single integrated judiciary headed by the Supreme Court. Each state, or a group of them, has a High Court with administrative control over the subordinate judiciary (district and below). It is unlike in the USA where there are two sets of courts—one for each state and one for federal laws and matters. In India, Supreme Court can be approached to challenge any verdict of the High Court and other courts. Such a system plays an important integrating role and maintains the unity of the country. Thus, it is said that the Supreme Court has a ‘unifying effect’ on the country.
Ques. 7 : What is a Constitution? Bring out the salient features of the Indian Constitution?
Ans. The Constitution contains many provisions for an independent and impartial judiciary. For example, the judges of the Supreme Court and the State High Courts have security of service. Independence of judiciary ensures that there is no pressure on the judiciary to be biased. The judges can be objective and impartial.
Universal Adult Franchise
The Constitution provides for Universal Adult Franchise. The citizens of India who are 18 years of age and above have been granted the right to vote irrespective of any qualification pertaining to education, possession of property or payment of income tax. To bring the Scheduled Castes and Tribes at par with the other communities of the country, some seats have been reserved for them in the Union Parliament, State Legislatures and local bodies in accordance with their population. There are reserved parliamentary and assembly constituencies from where only the members of the Scheduled Castes or Tribes can contest elections. In the Budget session of the Parliament (2008), 108th Constitution Amendment Bill was introduced to give reservation to women in the Union and State legislatures.

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