Constitutions

  • Constitutions are classified into Written & Unwritten.

    • Written Constitution are compiled in the form of a Book.

    • Unwritten exist in the forms of customs, traditions, precedents, Statutes and Judicial decisions.

  • The Indian Constitution is highly detailed with 465 Art & 12 Sch.

    • USA-7 Art/Aus-128Art/China-138Art/Canada-147Art.

  • Contributing Factors:

    • Vast historical and cultural diversity.

    • Single Constitution for both Centre & States (except J&K).

    • Dominance of legal luminaries in Constituent Assembly.

    • Contains detailed administrative provisions.

Drawn from Various Sources.

  • GoI Act, 1935 — Fed. Schm/Off. of Gov/Judiciary/PSC/Emergency/admin.

  • UK — Parliamentary Govt/Rule of Law/Leg. pocedure/Single Citizenship/Cabinet/Prerogative Writ/Parl. Privilege/Bicameralism.

  • US — Fund. Rights/Indp. Judiciary/Judicial Review/Impeachment of Prez/Removal of SC & HC judges/Post of Vice-President.

  • Irish — DPSP/Nomination of RS members/Method of election of Prez.

  • Canada — Quasi-federalism/Residuary powers with Centre/Advisory Jurisdiction of SC/Appointment of Governors.

  • Aus — Concurrent list/Freedom of trade/Joint Sitting.

  • Weimar — Suspension of Fundamental Rights during Emergency.

  • USSR — Fund Duties/ideal of justice(social, econ & political) in Preamble.

  • French — Republic/ideals of liberty, equality & fraternity in Preamble.

  • S.A. — Amendment of Const./election of RS members.

  • Japan — Procedure established by law.

Blend of Rigidity and Flexibility.

  • Constitutions are also classified into Rigid & Flexible.

    • Rigid Const. requires a special procedure to amend.

    • Flexible Const. can be amended with same process as Laws.

  • Indian Constitution is partly Rigid and partly Flexible.

  • Article 368 provided for two types of amendments :

    • Amendment by Special Majority — ⅔ of present & voting member of both Houses + 50% votes of total membership.

    • Amendment by Special Majority + ratification by half of the total State Legislative Assemblies of India.

  • Some parts can be amended like Ordinary Law (Simple Majority).

Quasi-Federal Structure.

  • Federal System with a strong Unitary Bias.

  • Contains both Federal and Unitary features :

    • Federal features – two govt/div of pwr/Written Const/Supremacy of Const/Rigid Const/Indp Judiciary/Bicam.

    • Unitary features – Strong Centre/Single Const/Single Citizenship/Flex. Const/Integrated Judiciary/Appointment of Gov by Centre/Emergency prov/All-India Services.

    • The term ‘Federation’ not used in Constitution.

    • Article 1 describes India as a ‘Union of States’.

Parliamentary Form of Government.

  • Adopted from UK/Also known as Westminster model of Govt.

  • Based on system of cooperation and coordination between Legislature & Executive.

  • Presence of Nominal and Real Executives.

  • Majority Party Rule.

  • Collective Responsibility of the exec to the leg.

  • Membership of Ministers in the legislature.

  • Prime Minister (or Chief Minister in States) – Head of Govt and Leader.

  • Dissolution of the Lower House when the Government resigns.

Synthesis of Parliamentary Sovereignty & Judicial Supremacy.

  • Parliamentary Sovereignty – British Parliament.

    • Parliamentary laws remain largely unchallenged.

  • Judicial Supremacy – American Constitution.

    • Judiciary enjoys vast powers to review laws on the basis of ‘Due process of Law’.

  • Indian Constitution provides a mix of these, where :

    • Parliament’s laws can be challenged in the judiciary.

    • Judicial Review is limited by ‘Procedure Established by Law’ so the Parliament can change entire Constitutional provisions in order to make their laws valid in the courts.

Integrated and Independent Judiciary.

  • Indian Judiciary is both Integrated and Independent.

    • Integrated — A hierarchy with SC at the top followed by HCs, then District Courts and other courts. This Single system of Courts enforce both Central and State Laws.

    • Independent — Seperation of Powers from the exec & leg.

      • Appointments & postings made by the Judiciary itself.

      • SC expenses charged on Consolidated Fund.

      • Ban on practice after retirement.

      • Security of tenure and fixed service conditions.

      • Discussion of Conduct of judges prohibited in leg.

Fundamental Rights.

  • Part-lll of Constitution guarantees 6 Fundamental Rights :

    • Right to Equality (Art 14-18).

    • Right to Freedom (Art 19-22).

    • Right against Exploitation (Art 23-24).

    • Right to Freedom of Religion (Art 25-28).

    • Cultural & Educational Rights (Art 29-30).

    • Right to Constitutional Remedies (Art 32).

  • Right to Property (Art 31) was deleted by 44th Amd Act, 1978.

    • It’s now a legal right under 300-A in Part-Xll.

  • Fundamental Rights are justiciable.

  • Fund. Rights are not absolute. Subject to reasonable restrictions.

    • Can be Curtailed or Repealed by Parliament.

    • Can be Suspended during National Emergency (except Art 20-21).

Directive Principles of State Policy.

  • Enumerated in Part-lV of the Constitution.

  • Can be classified into Socialistic, Gandhian & Liberal-intellectual.

  • Seeks to establish a ‘welfare state’ in India.

  • Non-justiciable.

  • Constitution states — “it shall be the duty of the State to apply these principles in the making of the laws.

  • Minerva Mills case (1980), SC stated — “Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the DPSP.”

Fundamental Duties.

  • Added through the 42nd Amendment of 1976 on recommendation of the Swaran Singh Committee.

  • 86th Amendment of 2002 added one more duty.

  • — To Respect Constitution, National Flag, National Anthem/Cherish ideals of independence struggle/uphold Sovereignty, unity & integrity/Defend Country, render national service/to promote harmony, brotherhood ; respect women/preserve rich heritage of culture/protect environment/Scientific temper/Safeguard Public Property/strive for excellence in all spheres/to provide education to every child between 6-14 years.

  • Non-justiciable.

A Secular State.

  • No official religion of the Indian State.

  • ‘Secular’ term added through 42nd Amendment.

  • Provisions for secularism :

    • Protection against discrimination (Art 15).

    • Equality before law (Art 14).

    • Equality of opportunity in public employment (Art 16).

    • Right to Freedom of Religion (Art 25-28).

    • Right to conserve culture & establish minority institutions (Art 29&30, respectively).

Universal Adult Franchise.

  • Every citizen not less that 18 years has Right to Vote without discrimination.

  • Universal Adult Franchise for Lok Sabha & Leg Assemblies.

  • 61st Amendment of 1988 reduced voting age from 21 to 18.

Single Citizenship.

  • Despite Dual Polity (Centre & States), only Single Citizenship exists.

  • Only National or Central Citizenship. No citizenship of the States.

Independent Bodies.

  • Bodies Independent from the leg, exec & Judiciary :

  • Election Commission — to ensure fee & fair elections.

  • Comptroller & Auditor-General — Guardian of public purse. Audits Centre and State Accounts and expenditures.

  • Union Public Service Commission — Recruitment to All-India Services, and higher Central Services & advice Prez on disciplinary matters.

  • State Public Service Commissions — Recruitment to State services & advice Governor on disciplinary matters.

Emergency Provisions.

  • Provision to Safeguard the Sovereignty, unity, integrity & security of the country, the Democratic political system & Constitution.

  • National Emergency — (Art 352) Grounds of war, external aggression or armed rebellion.

  • State Emergency — (Art 356) President’s Rule on failure of Constitutional Machinery or (Art 365) Failure to comply with directions of Centre.

  • Financial Emergency — in financial instability (Art 360).

  • Centre becomes all powerful. Assumes Unitary structure.

Three-tier Government.

  • 73rd & 74th Amendments of 1992 added third tier (Local).

  • 73rd Amendment recognised Panchayats (Rural Local Governments) by adding Part lX and new Schedule 11.

  • 74th Amendment recognised Municipalities (Urban Local Governments) by adding Part lX-A & Schedule 12.

Cooperative Societies.

  • Cooperatives are voluntary autonomous association of persons to meet their common economic, social & cultural needs through a jointly owned & democratically controlled enterprise.

    • Examples – AMUL & Aavin.

  • Constitutional status given – 97th Amendment, 2011.

    • Made Right to form Co-op Societies a Fund Right (Art 19).

    • Added new DPSP – Policy of promotion of Co-op(Art 43-B).

    • Added Part lX-B entitled “The Co-operative Societies” (Art 243-ZH to 243-ZT).

Criticisms of the Constitution.

  • A borrowed Constitution.

  • A Carbon Copy of the 1935 Act.

  • Un-Indian or Anti-Indian.

  • An Un-Gandhian Constitution.

  • Elephantine Size.

  • Paradise of Lawyers.