Salient Features of the Constitution with a brief Comparison to various Constitutions

By | November 4, 2019
Concept of State under Article 12 of Indian Constitution

In this article, the author has made an endeavour to highlight the constitution of India with its salient features which serve as a unique framework.

Introduction

The Indian Constitution is the supreme law of the land, a social document which is reflecting the “will of the people”. All the powers, functions and validity of legislation lie with the constitution. Therefore, it is supreme than the legislature itself. It is said to be a living document. Its flexibilities lie with amendments and interpretations with time.

It is an instrument that makes the system of country work. It took nearly three years to frame the Indian Constitutional draft. It is catering to both the grievances of everyday governance and trouble of exceptional circumstances with time. An endeavour made to highlight constitutional rule in India with its salient features which serve as a unique framework.

  1. Modern Constitution

The Constitution of India was framed in the mid-twentieth century which came up to be the advantage to the makers as it was possible for them to refer and take cognizance of other’s constitutions which were operating in various nations of the world. Thus, it drew upon a rich fund of mankind exposure, wisdom, heritage, and traditions in the area of the governmental process in order to fashion a system suited to the political, social and economic conditions in India.[1]  Though, it is inspired by several Constitutions but has adopted those principles in new patterns and directions that were suitable for it.

  1. Written and Lengthy Constitution

The Constitution of India is the written, lengthy and detailed document that elaborates all the provisions. It originally had 395 Articles organised under 22 Parts and 8 Schedules but presently it contains Preamble, 461 Articles, 25 Parts and 12 schedules after many amendments.[2] It was the longest constitutional draft in the world till; Yugoslavia had the impertinence to adopt a longer one.

  1. Rigid and Flexible

The combination of flexibility and rigidity is the complimentary feature of the Indian constitution. The amending procedure can be seen as the ground of scaling the rigidity and flexibility of the constitution. The power of Parliament to amend the Constitution and procedure is mentioned in Article 368 of the Constitution.[3]

Indian Constitution has a certain provision which required simple majority with the ordinary legislation in the Houses of Parliament for the amendment which could be seen as its flexibility. But, it has few provisions which cannot be amended easily and require a special majority of the house which highlights the rigid nature of the Indian Constitution.

  1. Preamble

The Preamble of the Constitution of India declares the philosophy behind the constitution and has played a significant role in forming the fate of the nation.

It constitutes India to be a Sovereign Socialist Secular Democratic Republic. “The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice – social, economic and political- to every citizen through rule of law.”[4]

  1. Responsible Government

An essential explanation behind the decision of this arrangement of government in the form of parliamentary was that the individuals had a long encounter of this framework under the Government of India Acts. In spite of the fact that the British form of parliamentary government was embraced but appointing a hereditary ruler as the head of the country was not appropriate, on the grounds that India had turned into a  ‘Republic’ nation. In this manner, the head of the Parliamentary form of government was an elected president. The Constitution builds up a parliamentary type of government both at centre and state where the executive organ is answerable for its actions to the elected legislative organ.

This Indian framework is fundamentally different from the presidential framework in America. Whereas the American system is based on the doctrine of separation of powers between the executive and legislative organs, the Indian system is based on the principle of co-ordination and co-operation of the two organs.[5]

  1. Fundamental Rights and Duties

The Indian Constitution guarantees some basic human rights to the people in Part III like Right to Equality, Equal Protection of Laws, Right to Freedom, Right to life and personal liberty, Right to freedom of religion and many more. Every one of these rights in Part III is accessible against the State subjects. Also, the Constitution expressly mentions some reasonable restrictions which draw a balance between individual freedom and social control.

The concept of Fundamental Rights has been borrowed from the US Constitution which was the first constitution to successfully give shape to the basic human rights which came to be incorporated in the form of ten amendments that embody the Lockean ideas about the protection of life, liberty, and property.[6] The tradition of fundamental rights in the British model and the Australian Constitution falls short in declaring these rights and merely guarantees few ideal rights.

Essentially, the constitution additionally gives a list of 11 obligations of the citizens which are known as the Fundamental Duties. In the 42nd Constitutional Amendment Act, 1976 upon the recommendations of the Swaran Singh Committee these Fundamental Duties were incorporated under Part IV in Article 51-A of the constitution. There is no judicial enforcement for any of these Fundamental Duties. But, there is a moral and ethical obligation for citizens to appreciate these duties.

  1. Directive Principles

‘Directive Principles of State Policy’ are listed in Part IV of the Constitution from Article 36 to Article 51. These are guidelines provided for the State to advance the welfare of the individuals and society by verifying and securing social order. There is no judicial enforcement for these principles by courts for their infringement.

Article 38 of the Constitution declares that ‘these standards are major in the administration of the nation and it will be the obligation of the state to apply these standards in making laws’.

  1. Adult Franchise

Another element of the Constitution is that every individual who is over the age of 18 years has the privilege and an equivalent right to cast his vote without any discrimination on the ground of gender, religion, caste, class, etc.

Universal adult suffrage is the significant concept of democracy which expels social disparities and keeps up the standard of political equality to every one of the citizens who has registered themselves for voting. India has “One man, one vote” principle for adult franchise.

The voting age in Countries like Japan, Denmark is 25 years whereas in Norway and Switzerland it is 23 and 20 years respectively. America, Turkey, Britain, and Russia have their minimum age for casting franchise is 18 years like that in India.

  1. Independent Judiciary

The basic feature of the Constitution has separation of power among three institutions of legislation, executive and judiciary. The Indian constitution demands the independent judiciary for the smooth functioning of the democratic country. Our constitution has a solitary coordinated arrangement of Courts for the Union and the States which function under respective laws, and the Supreme Court heads the whole framework.

Another classic component of our Constitution is the independent judiciary with limited “Judicial Review”. The fundamental element of the judicial power of the courts under the constitution works as centiles to the Rule of Law.

Despite the fact that both the Indian and the American Constitutions are federal in nature, but both are very different in their judicial system as the USA embraces a dual system of courts i.e. a federal judiciary having Supreme Court at the top along with a separate and parallel judicial system in each State-India on the other side has unified and not a dual system of courts. In India where the Supreme Court, the High Court, and the Lower Courts establish a unified, single, judiciary and have jurisdiction over each case emerging under any law whether authorized by Parliament or State Legislature.

The unified judicial system avoids diversity in remedial procedures and confusing jurisdictional conflicts between the two parallel judicial systems such as in the USA.[7] The Indian framework in this way has the benefit over its American counterpart.

  1. Federal Constitution

Another amazing element of the Indian Constitution is that it has a federal framework with the quality of a unitary government. The Constitution of India accommodates the division of power between the Centre and the States. The performance of the constitution which establishes dual polity with two-tier governmental framework keeps the federal fabric intact.

The features that highlight and demonstrates that there is a federal character in the Indian Constitution is the written constitution, the bicameral legislature, independent judiciary, the rigidity of the constitution and supremacy of the constitution. This federal nature turns into a unitary system at whatever point a crisis is declared like an emergency and the residuary power of the centre also underlines the unitary feature.

India belongs to the federal family having Australia, USA, and Canada as its members and is furnished as a notable example with ‘co-operative federalism’ which is also characterised as the ‘quasi-federal’. Members of the federal family are very rigid with their Constitutions except for India. There have been only 27 amendments to the American Constitution while India has made 103 amendments to its Constitution to date.

  1. Single Citizenship

Ordinarily, a native of a federal state has double citizenship as there are two arrangements of government like the USA, yet India notwithstanding being a federal state pursues single citizenship. The Constitution of India accommodates one and uniform citizenship to each person in the nation.

There is no discrimination or segregation of any individual in India on the basis of his place of birth or habitation.[8] Also, in India, an individual has the option to move to any piece of territory of the nation or live at anyplace in the domain of India except the restricted places.

  1. Minorities and Backward Classes

Homogeneity lacks in Indian society where there exists diversity in culture, class, language, religion etc. At the time of independence people belonging to a minority group or lower class has a feeling of insecurity in them because of the society which does not allow them to live and work freely. So in order to promote a sense of security and uplift the minorities and backward classes our constitution granted them some special rights and reservations.  No special privilege has, however, according to any section in the matter of representation in the legislature.[9]


[1] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 10.

[2] Id at 11.

[3] (1) Notwithstanding anything in this Constitution, Parliament may in the exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in –

(a) article 54, article 55, article 73, article 162, article 241 or article 279A or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

[4] C. Ravichandran Iyer v. Justice A.M Bhattacharjee, (1995) 5 SCC 457, 471 (para 14).

[5] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 16.

[6] B.Bailyn, Ideology Origins of the American Revolution, (1967).

[7] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 19.

[8] Article 14 of the Indian Constitution.

[9] JAIN, Safeguards to Minorities: Constitutional Principles, Policies and Framework in I.L.I., Minorities and the Law (1972).


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