By | January 1, 2017
Meaning Of Law Under Article 13

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The constitution of India is unique in many ways. It has several special features that distinguish it from other constitutions of the world such as:

(1) Size of the Constitution– It is the lengthiest Constitution ever given to any nation. It is a very comprehensive document and includes many matters which could legitimately be the subject matters of ordinary legislation or administrative action. This happened because the government of India Act, 1935, which was after all basically a statute, was used as a model and an initial working draft and large portions of it got reproduced in the constitution.

(2) Types of Constitution (written or unwritten): Constitutions may be written like the US constitution or unwritten and based on conventions like the British.  Indian constitution is written even though conventions also play a part insofar as they are in keeping with the provisions of the constitution. It originally contained 395 articles and 8 schedules. It presently contains 395 articles (total number-448) divided into 22 parts and 12 schedules.

Rigid or Flexible: Constitutions may be called rigid or flexible on the ground of the amending procedure being difficult or easy. Federal constitutions are usually classified as rigid because of their difficult amending processes. Indian constitution may be said to be a combination of rigid and flexible inasmuch as certain provisions of the constitution can be amended like ordinary legislation by simple majority in the houses of parliament, other provisions can be amended by a special majority.

(3) Parliamentary or Presidential system of government- India is a republic (i.e. the supreme power rests in all the citizens entitled to vote- the electorate, and is exercised by representatives elected, directly or indirectly, by them and responsible to them) and the head is the president in whom all the executives power vests and in whose name it is to be exercised. He is also the supreme commander of the armed forces. However, unlike the US president, Indian president is only a nominal or constitutional head of the executive; he acts only with the aid and advice of the real political executive which is the council of ministers. The ministers are collectively responsible to the popular house of parliament.

It would, however, be wrong to assert that we have adopted the British parliamentary system in toto. There are several fundamental differences and departures. To name a few; the UK constitution is still largely unitary, while ours is largely federal. They are a monarchy with a hereditary king while we are a republic with an elected president. Unlike the British, we have a written constitution and our parliament, therefore, is not sovereign and legislation passed by it is subject to judicial review. Our constitution includes a charter of justiciable fundamental rights which are enforceable by the courts not only against the executive but also against the legislature unlike the position in UK.

Dr. Ambedkar had said in the constituent assembly: “the draft constitution in recommending the parliamentary system of executive has preferred more responsibility to more stability.” However, some commentators argue that it causes political instability and dysfunction viz. hung parliaments or compulsions of coalition dharma.

(4) Parliamentary Sovereignty or Judicial Supremacy in India- The constitution has arrived at a compromise between the British sovereignty of parliament and American judicial supremacy. We are governed by the rule of law and judicial review of administrative action is an essential part of rule of law. Thus, courts can determine not only the constitutionality of the law but also the procedural part of administrative action. But, since we have a written constitution and the powers and functions of every organ are defined and delimited by the constitution, there is no question of any organ – not even parliament – being sovereign. Both parliament and the Supreme Court are supreme in their respective spheres. While the Supreme Court may declare a law passed by parliament ultra vires as being violative of the constitution, parliament may within certain restrictions amend most parts of the constitution.

(5) Universal Adult Franchise: – Dr. Ambedkar said in the constituent assembly that by parliamentary democracy we mean ‘one man, one vote’. Almost as an act of faith, the founding fathers decided to opt for ‘universal adult suffrage’ with every adult Indian without any distinction at once having equal voting rights. This was particularly remarkable in the context of the vast poverty and illiteracy of the Indian populace.

 (6) Secular State India has been declared secular state because of its policy of non-discrimination towards any religion. All religions are held equally in high esteem by the state and there is no state religion (unlike a theocratic state) or a preference for a particular religion.

(7) Charter of Fundamental Rights: – Fundamental rights incorporated in part III of the constitution are the inviolable rights of the individual against the state. Any law or executive action depriving an individual citizen of his freedom, for example, can be challenged in the Supreme Court or High Court. The constitution also lays down the machinery and mechanism for the enforcement of these rights. In the US Constitution, the fundamental rights were expressed in absolute terms. But there can be no absolute individual rights. For, the rights of each individual are limited at least by similar rights of other individuals.

(8) Directive Principles: – The directive principles of state policy inspired by the Irish precedent are a unique feature of our constitution. Most of the socio-economic rights of the people have been included under this head. Even though said to be not enforceable in courts of law, these principles are expected to guide the governance of the country. They are in the nature of ideals set by the founding fathers before the state and all the organs of the state must strive to achieve them. In recent years, the directive principles have increasingly assumed greater relevance and importance not only for the legislatures but also in the eyes of the courts.

(9) Fundamental Duties: – The 42nd amendment to the constitution inter alia added a new part to the constitution under the head fundamental duties. It lays down a code often duties for all the citizens of India. Inasmuch as there can be no rights without corresponding duties and rights of citizens have no meaning without respect for political obligations of the citizens towards the state, it is unfortunate that the code of fundamental duties of the citizens has not so far been accorded the importance it deserves.

(10) Citizenship: – In keeping with their aim of building an integrated Indian fraternity and a united nation, the founding fathers provided the ‘one single citizenship’ despite the federal structure. In federal states like USA and Switzerland, there is a dual citizenship, viz., the federal or national citizenship and the citizenship of the state where a person is born or permanently resides. Unlike the US, there was to be no separate citizenship of the union and of the states and all citizens were entitled to same rights all over the country without any discrimination subject to a few special protections in case of the state of Jammu and Kashmir, tribal areas etc.

 (11) Independent Judiciary – The constitution of India establishes an independent judiciary with powers of judicial review. The High Courts and the Supreme Court form a single integrated judicial structure with jurisdiction over all laws – union, state, civil, criminal or constitutional. Unlike the US, we do not have separate federal and state court systems. The entire judiciary is one hierarchy of courts. it not only adjudicates disputes and acts as the custodian of individual rights and freedoms but also may from time to time need to interpret the constitution and review legislation to determine its vires vis-a-vis the constitution.

(12) Union and its Territories: – The constitution of India does not protect territorial integrity of states. Part 1 of the constitution comprising articles 1 to 4 provides a self-contained mechanism for effecting changes in the constitution of states or union territories of the union of India. There are at present 29 states and 7 union territories in the union of India.

 (13) Special status of Jammu and Kashmir: – By virtue of article 370 of the constitution, the state of Jammu & Kashmir enjoys a special status within the Indian union. It is the only state possessing a separate constitution which came into force on 26th January, 1957. However, it is included in the list of states in the first schedule of the constitution of India. The jurisdiction of parliament is limited to matters in the union list and only some matters in the concurrent list. The provisions of Indian constitution did not automatically apply to Jammu and Kashmir. They were gradually made applicable (some in modified form) under article 370. Art. 370 was incorporated in the constitution in pursuance of the commitment made by pundit Jawaharlal Nehru to maharaja Hari Singh in October 1947 at the time of signing the instrument of accession of Jammu and Kashmir to India.

(14) Panchayati Raj and Nagar Palika institutions: – The constitution 73rd amendment act, 1992 and the 74th amendment act, 1992 have added new parts 9 and 9-A to the constitution. Under these two parts, 34 new articles (243 to 243-ZG) and two new schedules (11 and 12) have been added. These amendments do not apply to the states of Meghalaya, Mizoram, Nagaland and j & k, union territory of Delhi, hill areas in Manipur and Darjeeling in West Bengal. Also, these do not apply unless extended to scheduled areas and tribal areas under article 244.

Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.