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CONSTITUTION OF INDIA
By
Er & Adv: Davy Cherian ,ME ,LLB
(Chartered Engineer)

Nature of Indian Constitution

Is the Indian Constitution Federal

According to traditional classification a constitution may be either unitary or


Federal.
In Unitary, the Power of Govt. are centralised in one government Viz.
Central Govt. and the provinces / states are sub-ordinates.

In Federal System, on the other hand, there is a division of powers between


the centre and the state Govts and both are independent in their own spheres.

There is a wide spectrum of opinion among the Constitutional Experts about


the nature of Indian Constitution. Somebody says it is quasi-federal constitution and
contains more unitary features than federal. In other view, it is federal with a novel
feature of adopting itself to national emergencies. According to Dr. Ambedkar, the
chairman of the drafting committee, who observed as “ I think it is agreed that our
constitution not withstanding the many provisions which are contained in it
whereby the centre has been given powers to override the Provinces ( States)
nonetheless , is a Federal Constitution "

What is Federal Principal

Accordingly Prof: wheare, the Federal Principal “ is meant the method of


dividing power so that general and regional Governments are each within a sphere
of co-ordinate and independent in their spheres and not sub-ordinate to one
another’’.

American Constitution is a true example of Federal Constitution where the


powers of both Central and state Governments are divided and both are independent in
their own spheres. The existence of co-ordinate authorities independent. Though the
Constitution of US is considered as truly Federal, there is an exemption to the Federal
Principal in that the senate is comprised of representatives selected by the legislative of
the state. Thus the part of the central Govt. of the US is dependant to that extent on the
regional Govts Now it can be said even if there are exceptions, the constitution is called
Federal where the Federal principle is predominant.
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Essential Characteristics of a Federal Constitution

1. Distribution of powers- The distribution of powers is the essential feature of the


Federation. Here the matters of the National importance in which a uniform policy is
desirable in the interests of units, the authority is entrusted to the Union and matters
of local concern remain with the States.

2. Supremacy of Constitution – In a Federal System, the Constitution is the supreme


law of the land and for Federalism, supreme constitution as well as written
Constitution are essential.

3. Rigidity – Rigidity is considered in the sense that the procedure for amendments are
complicated and difficult.

4. Authority of Courts – For Federal State, legal supremacy of the constitution is


essential . The judiciary has, in a federal policy , the final power to interpret the
Constitution and guard the entrenched provisions of the Constitutions .

In the above background, the Indian Constitution has got all Federal
characteristics. It establishes a dual policy, a system a double Govt. with Central Govt. at
the Centre and state Govts. There is distribution of powers between the centre and state
Govts. Each level of Govt. is supreme. The Constitution is written and supreme. The
amendment is not possible without the consent of the majority of states. The Constitution
establishes Supreme Court to decide disputes between the Union and the between states
as per the provisions of the Constitution.

Still some Experts do not agree that Indian Constitution is a real


Federal as there are some provisions for the Centre to interfere with the states and thus
places states in a subordinate position, which violates the Federal Principal. Somebody
say Indian Constitution is quasi- Federal, unitary with Federal features. In the following
provisions, the Indian Constitution modifies from the Federal principal.

Appointment of Governors

The Governors are appointed by the President (Article 155 and 156). This is
not as significant as we think that the Governor act only accordingly to the advise of the
Ministers. As per provisions of Arts 200 and 288(2), the Governor is to send some state
laws for the assent of the President. Generally the President will not exercise his power to
veto but it was happened in case of Kerala Education Bill where it was referred to
Supreme Court for advise as to know whether any provisions in the bill ultra vires the
Constitution.
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(2) Parliament’s power to legislate in the national interest

Under Art 249, the Parliament is empowered to make laws on any matter
enumerated in the state list if the Rajaya Sabha passes a resolution by 2/3 rd majority that
it is necessary in the national interest. Normally this cannot be unless the Constitution is
amended. But this can be in case two or more states passing a resolution by 2/3 majority
of the members present.

(3) Parliament’s power to form new states and alter boundaries of existing states

The Parliament may form new states. Very recently two new states were
formed as Chaltisgarh and Uthrananjal . The Art 3 gives provision under Constitution for
readjustment of the territories of Constitutional states.

(4) Emergency Provisions

The Constitution envisages 3 types of emergencies (1) emergency


caused by war or external aggression or armed rebellion (Art 352) (2) emergency caused
by failure of constitutional machinery in States (Art 356) and (3) financial emergency
(Art 360). When the proclamation of emergency is made under Art. 352, the normal
distribution of powers in between the centre and the states undergo a vital change.
Parliament is empowered to make laws with respect to any matter enumerated in the State
List. The centre may direct the states as to manner in which the states executive to
function. Further the President may by order direct that all or any of the provision of Arts
.278 to 279 relating to distribution of revenue between the Centre and the State shall take
effect with such exception or modifications, as he thinks fit. Under Art. 356, if the
President is satisfied that Government of the state cannot be carried on in accordance
with the provisions of the Constitution, he can dismiss the state ministry and dissolve the
Legislature and assume all the functions of the state. This has happened for the first time
in Kerala in 1957 and later in other states. Thus the normal distribution of powers
between the Centre and the states, which is the basic element of a federal constitution, is
completely suspended. It is alleged that it vitally affects the Federal Characteristics of the
Indian Constitution and convert it into a Unitary State.

Dr. V N Sukla correctly observes that “it is the merit of the constitution
that that it visualises the contigencies and acts strictly to keep up the unity of
Nations. The Contitution of USA, Australia and canada though do not express for
enlargement of Federal power during emergencies, during the world wars, the
defence power of the Federal Govt. was extended that the Courts interpreted that
these states behaved like Unitary than Federal State” .

Prof . Wheare who is a Constitutional Expert says that the USA,


Switerland and Australia are true examples Federal Constitution. Infact the Constitution
of India is Federal, but USA is more Federal.
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In short it may be concluded that the Constitution of India is neither purely


Federal nor purely Unitary but is a Contribution of both. The Indian Constitution is
mainly Federal with unique safeguards for enforcing National unity and Growth.

SALIENT FEATURES OF THE INDIAN CONSTITUTION

(1) The lengthiest Constitution in the world - It is the lengthiest and most detailed
written constitution in the world. Originally there were 395 Articles divided into 22
parts and 9 schedules. Now after 94th Amendment there are 442 Articles divided into
24 parts and 12 schedules.

Novelty of the Indian Constitution

The framers, infact, envisaged that Indian Constitution must be


the best-written Constitution. So they studied in details all the Constitution in the
world and also studied the defects of the same. They have decided finally to take the
best from other Constitutions. They have envisaged and sought to incorporate all
provisions to deal with any difficult situations and were aware to avoid any possible
Constitutional deal lock

Now a days the judiciary and the legislature are in confrontation


at times. The legislature has got many privileges and the Judiciary cannot interfere
and take any proceedings against the elected representatives for their acts, and
words inside the legislature. But, the Supreme Court & High Court used to issue
summons to the speakers of Assemblies and in all such cases, the elected
representatives defied the notices/ summons of the Court and the Courts also,
wisely acted on such situations to avoid a true confrontation which is not advisable
for Indian Democracy . Recently in the first week of April 2008, the kerala
Assembly speaker was served with a notice from the High Court to produce the
clippings of the Assembly Proceedings in the election case filed by Sri. T M Jacob
but the Hon’ble speaker refused to oblige.

The framers adopted the fundamental Rights from the American


Constitution (from Rights of Petitions), Parliamentary system from United
Kingdom, Directive Principles of the State policy from Constitution from Ireland
and added to safeguard the Indian Democracy in emergencies in the form of
German Rights and the Govt. of India Act 1935 .
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Establishment of a Sovereign, Socialist, Secular, Democratic Republic –The preamble


of the Constitution declares India to be a Sovereign, Socialist, Secular, Democratic
Republic. The word Sovereign emphasises that India is no more dependent upon any
outside authority. Its membership of the Commonwealth of Nations and that of the
United Nations Organizations do not restrict her sovereignty.

The term Socialist has been newly inserted in the preamble by 42 nd


amendments Act 1976. The word Socialism has no definite meaning but interpreted
according to convenience. In general, it means some form of ownership of the means of
production and distribution by the state and the degree of state. Control will determine
whether it is democratic or socialistic state India, however chosen a middle path, chosen
its own brand of Socialism i.e. Mixed economy.

Till the liberalization Policy adopted in our economy from 1991, India
predominantly developed the public sector but switched over to giving dominance to
private sector especially in the last two five years plans. Even the Governments in West
Bengal and Kerala had given importance to Private Sector like Tata , Ambani. Birla and
also for many foreign participants E.g. TEACOM (Smart City).

The word Secularism means a state which has no religion of state . All the
religions has got equal status and a citizen can faith in any religion according to his faith
and choice.

The term Democratic indicates that the constitution has established a


form of Govt: which gets its authority from the will of people. The rulers are elected by
the people and they administrated in the parliamentary System. Thus the real Power is in
hand of the people of India both in Union and in States.

The term Republic signifies that there shall be an elected head of the state
who will be the Chief Executive Head.

(2) Parliamentary form of Government - The framers of Constitution has adopted the
entire British System where the Parliament has got two houses. Though the President
is the real Constitutional Head in India the power is vested with the Ministers who are
elected by the people . In some states also have two houses of legislature.

In American, President is the Chief Executive, who is


elected directly by the people for 4 years and all power is vested with him. He is not
responsible to the lower House. He appoints his Ministers who are not elected
representatives and hence responsible to President only. But there are so many other
safeguards like various committees consisting of elected representatives and the
President and his Ministers have are answerable to these Committees.
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Parliamentary v. Presidential System – Before the introduction of Anti-Defection bill


by late Rajive Gandhi, there were frequent defections by the elected representatives
mainly for their personal gains and it has started deterorating the well rooted democracy
in India especially in states like Haryana where an elected representatives have shifted his
loyalty nine times in a day and the media nick named the process as Aya Ram and Gaya
Ram . Because of such irresponsibility of the elected representatives, the Anti –Defection
bill has been introduced which makes the member becomes ineligible if he defect
individually or with other members less than 50 % of the total No: of elected members.
This bought some Security to Govts to work ignoring the fear of falling unexpectedly.

Before the introduction of the Anti- Defection bill, there were strong
discussions for a Presidential system because of the frequent defeats of the Govts by the
defections, there was a committee called Swaran Singh Committee to recommend
Constitutional reforms who unanimously rejected the presidential system. Now a days
there are no such thinking and people adopted the Parliamentary system.

(3) Unique blend of rigidity and Flexibility – Rigid means that, for making
amendments it should have some special method of amendments. The Constitutional
Provisions, it should have 2/3 majority of the members present in the parliament (two
Houses )which was not difficult when single party rule was existing at the centre .
Now the situation has totally changed because of the coalitions Govts and total
unanimity is there irrespective of ruling or opposition party only when the benefits of
the members are enhanced.

Fundamental Rights

The fundamental rights of citizens are incorporated in part III of our Constitution. If it is
only written and if there is no means to enjoy it, there is no use. But Indian Constitution
clearly conferred the supreme court, the highest court of the grant the power to grand
most effective remedies in the nature of writs, Habeas Corpus Mandamus, Prohibition,
Quo-warranty and cerliorari . When ever these rights are violated by the State or by
anybody. It must be very clearly understood that fundamental rights are not absolute
rights, but they are subject to certain restrictions. Thus our Constitution try to strike a
balance between the individual liberty and the social interest. The idea of incorporating a
bill of Rights (Fundamental rights) has been taken from the constitution of US.

5. Directive Principles of state policy

It is incorporated in Part IV of the constitution, which set out the aims and
objectives to be taken by the States in the governance of the country. Unlike fundamental
rights, these rights are not justiciable. Though they are not questionable in courts, yet the
State authorities will have to answer to the electorates at the time of election. If we want
to make a welfare state as envisaged in our Constitution, the States will have to
implement the directive principles with a high sense of moral duty.
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Federation with strong centralizing tendency

The most remarkable feature of our constitution, being a federal constitution, it


acquires a total unitary character during the time of emergency. During emergency, the
central parliament is empowered to make any legislation on behalf of the states and the
central Govt. directs as to the manner in which their execution exercise the power .
During emergency, virtually the central Govt. is vested with all the powers. This unique
feature of Federalism and Unitary system is the unique. feature of our constitution

Adult sulfrage

Our constitution provides adult franchise to all citizens who have completed
18 years of age with out considering either of sex, property, taxation, caste, tribe,
education qualifications and the like. Though inspite of may difficulties, this experiment
crowned with success.

An Independent Judiciary

Our Constitution envisaged a strong, well defined independent Judiciary and it


has been very deeply rooted in our country. As we have seen, though there are
fundamental rights in our constitution unless there are provisions to enjoy it, there is no
use and it is equal to not existing. The famous maxim, unless there is remedy there is no
rights when it is violated. Our Courts remain as the custodian of rights of citizens.

A secular state

Our constitution envisages a Secular State where there is no state religion but the
individuals can have religious of their choice. Art 2, 5 to 28 of Constitution gives
concrete shape to the concept of secularity. Every citizen is guaranteed the freedom of
conscience and the right to profess, practice and propagate religion. But the restriction is
that nothing can be done against public order, moralty and health of public. Religions
freedom cannot therefore be used to practice economic exploitation.

Fundamental Duties

The 42nd amendment Act 1976 has introduced a code of ten fundamental Duties for
citizen. This is a constant reminder to every citizen that while the constitution specifically
conferred certain fundamental rights, it also requires the citizens to observe certain basic
norms of democratic conduct and democratic behavior.

References

1. Constitutional law of India - Dr . J .N. Pandey


2. Indian Constitution - Prof. G. P. Tripathi
3. The Indian Administrative Law - M.C Jain Kagzi
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