CHAPTER 3

SALIENT FEATURES OF THE

INDIAN CONSTITUTION

The salien t feature s or the fundam entals underl ying the struct ure of
the Indian .Constitution are as follow s- ·
I. A Writt en Cons tituti on-Su prem acy with Cons tituti on
It is patent on its face that Indian Consti tution is a writte n C?nsti tution .
It is the formal source of all constitutional law in the countr y and 1s regard ed
as the suprem e or the fundam ental law of the land. 1 Being a writte n
document, Indian Constitution is a controlled Constitution. 2 Being so, it has
certain implications -
Firstly, it provides for a limited government in the sense that tne
sovereign powers are divided among st-the~three organs of Gover nment , the
Executive, the Legislature and the Judiciary. The power s of each organ are
defined by the Constitution, and none can go beyon d its own power s or
encroach upon those belonging to other organs. 3
Secondly, the Constitution contains the basic or the funda menta l law
according to which the validity of the laws enacte d by the Legisl ature is
determ ined. A law enacted ·fi·y- tlfe-Le•g islatur e canno t violate any provis ion
of the Constitution. It is, therefore, that the Parlia ment in India canno t be
said to be a sovereign Legislature like the British Parlia ment. 4 Supre macy
in India lies with the Constitution5 and not with the Parlia ment. The
Consti tution is SlfE!eP.~l!..Jlg, the param ount law of the land and there is no
depart ment or branch of Government above or beyon d it. 6
1. See also supra, 1-4.
2. ~Jnder a controlled Constitution, the principles of checks and balance s
have an
importa nt role to play. See I.R. Coelho v. State of Tamil Nadu AIR 2007 SC
861
3. See State of Bihar v. Bal Mukund Sah, AIR 2000 SC 129,6 (5-J
· d B h).
wh erem th e "separat'ion o f powers " was held to be , u ge enc ,
· · s I a b ·
asic
Constitution. ee a so Madras B~r. Association v. Union of India, AIR s t ructure of the
1571; State of H.P. v. Satpal Saini, AIR 2017 SC 810. 2015 SC
4. Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC
Laws Act, 1912, AIR 1951 SC 332. · 2363 ., In re Delh•
•
5. The suprema cy of the Constitu tion mandate s all con ft f b .
the provisions of the Constitution. See IR Co lh s 1 u ;na1 odies to comply .
with
2007 SC 861, (9-Judge Bench). · · e
O
v. tale of Tamil Nadu, AIR
6. Raja Ram Pal v. Hon'ble Spealler, (2007) 3 SCC
18 .
(Jayala litha case), AIR 2001 SC 3435· Kesau d 4• B.R. Kapur v. · State of T.N.
1973 SC 1461, (13-,Judge Bench). ' anan a Bharati v. State of Kerala, AIR

( 22 )
•
 Chap. 3 I SALIENT FEATURES OF THE INDIAN CONSTITUTION
23

Thirdly. while the Constitution of India confers po~ s_ on the_0 rE:ans

of lhe government, it also imposes limits on the powers to be so exe~cised
by lhem. l"m-tlrel', the Constitution reposes in the Judiciary, the authority to
guard th at the limits imposed by it are not violated by any of the organs. It
has been observed by the Supreme Court of India that it is rather a duty of
th e <?~urt to declare a law unconstitutional which contravenes any mandatory
provision of the Constitution.1

·c"· Th~ Lengthiest, Bulkiest and the most Detailed

onstitution
The ~ndi?-n Constitution is the lengthiest8 and the most detailed of all
the Constitut10ns in the world. At its commencement it contained 395
Articles divided into 22 Parts and 8 Schedules. After' the passing of the
Constit~tion (Ninety-fourth ~endment) Act, 2006, the Constitution
now consists of 44 7 Articles divided into 24 Parts and 12 Schedules. Several
reasons which contributed to this extraordinary bulk of the Constitution are
as follows- ;>. c. -

(i) The framers of the Constitution gained experience from the known
Constitutions of the world. They studied the working of · the available
Constitutions, the difficulties which were faced in their operation. They
attempted to incorporate in the Indian Constitution, the good provisions of
all those Constitutions, provided express provisions removing the difficulties
in their operation and avoided the defects and loopholes that might come in
future in the working of the Constitution.
(ii) The Indian Constitution deals with the organisation and structure
not only of the Central Government but also of the States. 9
(iii) The Indian Constitution has reduced to writing many unwritten
conventions of the British Constitution as, for example, the principle of
collective responsibility of the ministers, the parliamentary procedure, etc.
(iv) The vastness of the country and the other peculiar problems such
as concerning language, minorities, tribal areas were taken into consideration
by the framers and they have incorporated, in the Constitution, provisions
to remove any difficulties which may be faced in future.
(v) To ensure that the future India is to be based on the concept of
social welfare State, the framers included in the Constitution a full Chapter,
Part IV, titled as Directive Principles of State Policy.
(vi) The Constitution contains a long list of Fundamental Rights,
securing to the people, the basic, natural and inalienable rights.
(vii) The Constitution contains not only the fundamental principles of
~, -✓crnance, but it also contains detailed provisions relating to citizenship,
10
official language, government services, electoral machinery, etc.

'!. R.M.D.C. v. Union of India, AIR 1957 SC 628; State of Madras v. V.G. Row. AIR
1952 SC 196; In re Delhi Laws Act, 1912, AIR 1951 SC 332.
8. The New Constitution of Yugosla','.ia, after its dismemberment enacted in 1974, is
the lengthiest Constitution in the world.
9. In this respect, the Constitution follows the precedent of Canada, for the Canadian
Constitution tit]ed as "the British North America Act, 1867", prescribes the
composition 'not only of the Union but also that of the Provinces.
lO. In other Constitutions, these matters are usually left to be regulated by the ordinary
law enacted by the Legislature.
 24 CONSTITUTIONAL LAW OF IND
IA [ Chap. 3
3. A So ve rei gn , So cia lis t, Se cu
lar , De mo cra tic Re pu bli c
Th e Pre am ble to the Constitution, at the ver
be a So ver eig n Sta te. Th e ter m y out set , declares Ind ia to
sov ere ign lite ral ly me ans the ult
superior, who recognises no ma ste r. 11 ima te
The ter m 'so cia lism ' is use d in
Constitutions. It has no definite me democratic as well as socialistic
aning. In general, however, it me ans
sys tem und er wh ich the me ans a
of production and dis trib uti on
State-owned. Ind ia does not go by are
tra dit ion al me ani ng of the ter m. Wh
me ant by the ter m soc iali sm is a soc at is
ialistic pat ter n of the society, wh ich
im~lies equ al opp ort uni ties to each only
individual for progress. 12
Th e ter m 'se cul ari sm ' 13 me ans tha
of its own. It does not me an tha t t the Sta te in Ind ia has no religion
the Sta te is an ath eis t Sta te, but
me ans is tha t in the ma tter s of reli wh at it
gion, the Sta te is neu tra l. 14 Th e Sta
tre ats all religions equally. 15 te
Th e Co nst itu tio n set s up
'de mo cra cy' is commonly define
a democratic gov ern me nt. Th e ter
m
d as a gov ern me nt by the people
people, and for the people. However , of the
, in con stit utio nal sen se, it ma y be def
as a sys tem of gov ern me nt in the adm ined
inis trat ion of wh ich eve ry adu lt citi
of the cou ntr y enjoys some direct zen
or ind irec t sha re. Th e Co nst itu tio 16
so pro vid ed tha t eve ry citizen who n has
atta ins the age of 18 yea rs is ves ted
the rig ht to vote for electing his rep wit h
res ent ativ es con stit uti ng the org ans
the gov ern me nt and also the freedom of
to be ele cte d to any of the se org ans
Th e ter m 're pu bli c' in a nar row sen .
the He ad of the Sta te is an electe se sig nifi es a sys tem und er wh ich
d person. Th e Pre sid ent of Ind ia,
the executive He ad of the Un ion of who is
India, is an ele cte d per son , who is
for a lim ited period. In a wid er sen cho sen
se,
wh ich the sup rem e pow er res ts in the the wo rd rep ubl ic me ans "a Sta te in
people and the ir ele cte d rep res ent ativ
or officers, as opposed to one gov es
erned by King or a sim ilar ruler." 17
Pre am ble to our Co nst itut ion use s Th e
the ter m in bot h the se sen ses . 18
4. Pa rli am en tar y Fo rm of Go ver
nm en t
Th e Ind ian Co nst itut ion est abl
ish es a 'Pa rlia me nta ry form
Government', bot h at the Ce ntr of
e and · the Sta te levels. Th e ess
cha rac teri stic s of a 'Pa rlia me nta ry ent ial
form of Go ver nm ent ' are tha t und er
a sys tem , the He ad of the Sta te is me suc h
rely a con stit uti ona l hea d, and second
the Executive ves ted wit h rea l pow ly,
ers is ma de ans we rab le to the Leg isla
Un der the Ind ian Co nst itut ion , the tur e.
Pre sid ent of Ind ia is a con stit uti ona
JI. Also see infra, Preamble 32.
l hea d
12. See Sam atha v. State of A.P
., AIR 1997 SC 3297; Air Ind ia
v. United Labour Union, AIR 199 Stat utor y Corporation
7 SC 645. Also see infra, Preamb
13. Secular cha ract er of the Constitu le, 32-33.
tion is said to be a mat ter of
draw n from various Articles conferr conclusion to be
ing Fun dam enta l Rights. See I.R.
of Tam il Nad u, AIR 2007 SC 861 Coelho v. State
.
14. See M.P.G. Nai r v. State of Ker
ala, AIR 2005 SC 3053; Bal Pat
Indi a, AIR 2005 SC 3172. il v. Union of
15. See Articles 25 to 28, infra, 450
-71, Preamble, infr a 36-38.
16. See Article 326 of the Constitution
. Also see infr a,' "Preamble", 36-3
17. See New Eng lish Dictionary, Oxfo 7.
rd.
18. D.D. Basu, Commentary on the Con
stitution of India, A, 1982, 146. See
325-6. Also see infra, Preamble, also Articles
37.
 Chap. 3 ] SALIENT FEATURES OF THE INDIAN CONSTITUTION 25

of the State as Article 74 provides for a Council of Ministers to aid and advise
him in the discharge of his functions. Secondly, Article 75 provides that the
Council of Ministers is collectively responsible to the House of People. The
same pattern has been adopted in the States with some modifications. 19
5. A Federation with Strong Centralising Tendencies
The Indian Constitution sets up a federal system of government with
strong centralising tendencies. 20 The foundation for a federal set-up for the
nation was laid in the. Government of India Act, 1935. 21 The chief
characteristics of a Federal Constitution22 are : (i) it is a written Constitution;
(ii) the supremacy lies with the Constitution; (iii) it provides for division of
powers between the Central and the Regional Governments; (iv) it is a rigid
Constitution, and (v) it provides for an independent judiciary. The
Constitution of India complies with all these requirements. The Constitution
provides for the distribution of powers between the Centre and the States.
It provides for the independence of judiciary.
Federalism is a way to protect Unit Governments against central
tyranny. However, in this respect, the framers of the Constitution have
incorporated unique features. Though a federal Constitution, it acquires a
unitary character during the times of emergency. 23 Even during normal times,
the Constitution vests the Union Government to control or to direct the
exercise of power by the State Governments for certain purposes. 24 These
features go to dilute the federal character of the Constitution. And these
miiitate against the concept of strong federalism, a basic feature. However,
these were added to the Constitution keeping in view the historical
background25 and the experiences in other countries having federal
Constitutions.
Indian federalism is not territory related and thus it does not cease to
be federal simply because a Rajya Sabha Member does not "ordinarily reside"
in the State from which he is elected. 26

19. For distinction between Parliamentary Form and Presidential Form, see supra, 5-6.
See also Articles 163-64, infra, 774-79.
20. See supra, "Nature of the Constitution of India", 7-9.
21. Prof. Yashpal v. State of Chattisgarh, AIR 2005 SC 2026.
22. A.V. Dicey, Law of Constitution, X, 164, quoted in State of W.B. v. K. Industries
Ltd., AIR 2005 SC 1646, at 1721.
23. See Articles 353, 354, 356, 360.. See also Kuldip Nayar v. Union of India, AIR
2006 SC 3127.
24. See Articles 256, 257, 249, 250, 252, 253.
25. The impact of partition of the country and the consequent law and order problem,
the rehabilitation of refugees, the issue of integration of princely States, the need
for rebuilding the economy on a planned and balanced manner and the need to
set-up a system for meeting external and internal threats to the security of the
new-born nation-all these factors influenced the thinking of the framers of the
Constitution to create a strong and powerful Centre. See K.R. Bombwall, The
Foundation of Indian Federalism, Asia Publishing House, Bombay, 1967, 274. Also
see State of WB. v. K. Industries Ltd., AIR 2005 SC 1646; State of Haryana v.
State of Punjab, AIR 2002 SC 685.
26. See Kuldip Nayar v. Union of India, AIR 2006 SC 3127.
 26 CONSTITUTIONAL LAW OF INDIA [ Chap. 3

6. A Unique Blend of Rigidit y and Flexibi lity

From the standpo int of amending the Constitution, the Indian
Constitu tion is flexible as well as rigid. Some provisions of the Constitution27
can be amended by the simple majority procedure as is followed for enacting
ordinary laws. While the resfoft he -Constitution is amended by a special,
more difficult and technical procedure, which requires spe.cjal majority in
both the Houses of the Indian Parliame nt. There are some special provisions
concerning both the Union and the States. For amendin g any of these
provisions not only special majority in each House of the Parliam ent is
required , but also ~tificati on by at least h~l!- ~f_!-!'ie State Legislatures. 28 ·
7. Adult Suffra ge29
The founding fathers of the Constitution of India abandon ed the old
system of commun al electorates prevailing under the Governm ent of India Act,
1935. They incorpor ated the system of uniform adult suffrage. 30 Article 326
as ameng~ d _b_y the Constit ution (61st Amendm ent) Act, 1989, secures to
every citizen of india, who attains the age of 18 years, the right to vote to
elect represen tatives to the Legislatures, both, Central as well as States.31

8. Single Citizen ship

Though the Constitu tion of India is federal and provides for a dual
polity, i.e., Union and the States, but it provides for a single citizenship for
the whole of India. There is no separate citizenship of the States.32 Every
Indian is the citizen of India and enjoys practically the same civil and political
rights of citizensh ip, no matter in which State he resides.
In America , the Constitu tion provides for separate State citizenship
along with the citizenshiP. of the U.S.A. Such a system creates the problem
that a State may "discrim inate in favour of its own citizens in certain matters
such as the right to hold a public office or to secure licences for practisin g
professions such as of law or medicine in the State.".a3 Such problem s are
avoided by the Indian Constitution.

9. Funda menta l Rights

Part III of the Indian Constitu tion secures to the people of India
fundam ental, basic and natural rights. This chapter is known as the I}jll_of
Rights for th(}_.Rf}_opj_e _of In_dia. The Constitu tion not only declares these
fundam ental rights but it also provides a speedy remedy for the enforcem ent
of these rights and the remedy for their enforcement is itself declared a

27. For example, Articles 2 to 4, 11, 5th Schedule, 6th Schedule.

28. See for details, Article 368, infra, 1155-56.
29. 'Suffrage' means 'right to voting', i.e. , 'franchise'.
30. Constitution of India secures Universal Adult Franchise at the very commencement
of the Constitution, while in American Constitution, commenced in 1791, women got
right to vote in 1920, the Natives got it in 1924 and the Blacks got it in 1964.
31. For details, see infra, 1083-85, Chapter 32 on "Elections".
32. See Articles 5 to 11 of the Constitution.
33. See M.P. Jain, Indian Constitutional Law, N.M. Tripathi Pvt. Ltd., Bombay, 1987,
13.
Chap. 3 ] SALIENT FEATURES OF THE INDIAN CONSTITUTION 27

fundamental right.34

10. Directive Principles of State Policy

Part IV of the Constitution sets out the aims and objectives to be taken
up by the State in the governance of the country. The directives contained
therein, have been declared ft..i1damental in the governance of the country,
and it has been declared a duty of the State to apply them while making
laws. They lay down certain social, economic and political objectives, to
achieve the ideal of true democracy. as

11. Fundamental Duties

Part IV-A of the Constitution lays down fundamental duties for the
citizens of India. The object is to remind them that while the Constitution
specifically qonfers on them, certain fundamental rights, it also requires the
citizens to observe certain basic norms of democratic conduct and behaviour. 36

12. Independent Ju_d iciary

The Constitution of India provides for the setting up of an independent
judiciary.37 The Judges pf the Supreme Court and the High Courts are
appointed by the Central Executive. But, once appointed, they are no more
controlled by any· autliority.·· The Constitution secures to the Judges, the
tenure of service and they cannot be removed before the expiry of their tenure
except by impeachment under the Constitution. 38 Their salaries and
allowances, once determined by the Union Parliament, cannot be diminishe·d
to their disadvantage during the tenure of their service. 39 The Courts are
vested with the power of judicial review and they can examine the
constitutional validity of a law made by the Parliament as well as by a State
Legislature. A law, which is declared unconstitutional by the Court, becomes
void and inoperative. The power of judicia.l review vested in the High Courts
under Article 226 and in the Supreme Court under Article 32, has been held
to be an mtegral .and essential feature of the Constitutlon, constituting part
of its basic structure, which, ordinarily, can never be ousted or excluded.-t0

13. Preventive Detention

In order to prevent any abuse of freedom by anti-social and subversive
elements, which might endanger the national welfare of the infant Republic
of India, the Constitution contains a unique, though, pernicious feature in
the form of Preventive Detention. 41 It empowers the State to enact a law
34. See infra, 509-10, Article 32.
35. See infra, 550-74, Articles 36 to 51.
36. See infra, 575-80, Article 51-A.
37. See Articles 124(2), 217, 124(4), 218, 125, 221, 146, 229, 124(7), 220, 121, 211. See
also infra, 758-61.
38. Article 124.
39. Article 125.
40. State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296; L. Chandra Kumar v.
Union of India, AIR 1997 SC 1125; Minerva Mills Ltd. v. Union of India, AIR
1980 SC 1789; Kesauananda v. State of Kerala, AIR 1973 SC 1461.
41. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
28 CONSTITUTIONAL LAW OF INDI A
[ Chap. 3
1e, for
prov idin g for prev enti ve dete ntio n of pers ons, even · duri ng peacetin
anc e
reas ons con nec ted with defence, ·foreign affairs, secu rity of Stat e, mai nten
to the
of pub lic ord er or mai nten anc e of supp lies and serv ices esse ntia l
com mun ity. 42