Chapter 2

SALIENT FEATURES OF THE

CONSTITUTION

2.1 Salient or outstanding features of the Constitution are such of its

characteristics which distinguish it from Constitutions of other countries. They are
not the same as basic features. Basic features are those provisions of the constitution
which cannot be amended, taken away or abridged. The doctrine of unamendability
of basic features was propounded in Kesavanand Bharati' and followed in numerous
cases.

2.2 I. The first thing that strikesa student of the Constitution is its-bulk
Compared to it other Constitutions look like small
Longest known
booklets. The U.S. Constitution has less than 5000
Constitution. words. The Canadian Constitution of 1982 contains
not more than 6500 words.
The factors leading to this bulk are as under-

1.1contains provisions in regard to administration of States. This is

unlike the U.S. Constitution where the States framed their respective Constitutions
separately. It follows the Canadian example. Our Constitution provides the
Constitution of the Union and all the States, except Jammu & Kashmir, which was
allowed to draw its own Constitution. Even the provisions of the Constitution did
not automatically apply to Jammu & Kashmir. They were gradually made applicable
(some in modified form) under Art. 370.
2.It contains-detailed provisions regarding administrative matters. The
framershad a desire.to make it a comprehensive document and had as precedent
the Government of India Act, 1935. It embodies detailed provisions regarding
organisation of Judiciary, Public Service Commissions, Election Commission etc.
Dr. Ambedkar justified inclusion of administrative details on the ground that it
would protect the Constitution from sureptitious subversion by unscrupulous
persons.
3. Bulk of the provisions of the Government of India Act, 1935 were
adopted. The Act of 1935 was a lengthy document. It was taken as model and
substantially incorporated in the Constitution. This naturally made the Constitution
a lengthy document.
Dr. Ambedkar justified the borrowing by stating that the people were familiar
with the existing system.
4. The vastness of the country and variety of problems required varied
solutions. Part XVI relating to Scheduled Castes and Tribes and Backward claseS

1. Kesavanand Bharati v. State of Kerala, A.LR. 1973 S.C. 1641 and Minera Mil
V. Union of India, ALR. 1980 S.C. 1789.
2. C.A.D., Vol. VIl, pp. 35-38.
L6
 Salient Features of the Constitution 27
2.6
and Sixth Sehedules
Part XVIl pertaining to Official Language and the Fifth
to tackle peculiar
relating to Scheduled Areas and Tribes had to be enacted
problems.
. After the commencement of the Constitution in the course of years

regional demands of
Arts. 371, 371A to 371-I have been inserted to meet the
Nagaland, Assam, Manipur, Andhra Pradesh, Maharashtra, Sikkim etc.

2.3 . The Constitutionenvisages a dual polity (Union and the States)

Bingle citizenship. but single citizenship. There is no State citizenship.
Indian The Constitution of U.S.A.
citizenship.
Only In India
allows dual citizenship-citizenship of U.S.A. and a State citizenship.
every citizen has the same rights wherever he may reside.

2.4 I. Our Constitution has been recast in material ways by amendments

42nd, 44th, 73rd and 74th Amend-

specially the 7th,
Recast by Amendments. IX and
ments. The last two amendments added Parts
for a third
IX-A pertaining to the Panchayats and Municipalities-thus providing
tier of government which is not found in any other Constitution.

2.5 IV. Generally federal Constitutions lack flexibility, that is to say.

theamending process is cumbersome which makes it
Federal Constitution with difficult to alter or modify the constitutional provi-
minimum rigidity. Sions. The Constitution achievesthis in a number of
ways
or substituted by simple majority
(a) Certain provisions may be changed boundaries
as is required for ordinary legislation, e.g.
Art. 3 (Changes in name and
of a State, forming a new State, increasing or decreasing the area of a State etc.)
Art. 169 (Abolition or creation of Legislative Councils), creation of Legislatures
for Union Territories (239A), Art. 348 (Language of Supreme Court and High
Schedules,
Courts), 2nd, Sth and 6th Houses of
in the two
(b) Some provisions require special majority
and voting and a majority of the total
Parliament i.e. 2/3 of the members present
membership of the House,
(c) If the amendment
seeks to change Arts. 54, 55, 73, 162, 241 or Chapter
IV of Part V, Chapter V of Part VI, Chapter I of Part IX etc. the amendments apart
ratification by the legislatures of the States. But the
from special majority require
legislatures is adequate. In the U.S.A. 3/4 of the States are
resolution of 1/2 of the
required to ratify.
Thus the Constitution is made adaptable by prescribing a variety of ways
for the original text.
changing
various places lays down the basic principles
2.6 (d) The Constitution at
and confers on the Parliament the power to replace
Legislation to supplement the existing provision or to supplement it by
the Constitution.
legislation. For example ) Part II laid down how
commencement of the Constitution. Later under
citizenship will be acquired at the
Art. 11 the Parliament enacted the Citizenship Act 1955. (it) Articie 22 provides
detention but empowers the Parliament
tor certain safeguards against preventive
law the circumstances under which a person may be detained, the
to prescribe by
 28 Introduction to the Constitution of India (2.9

of detention and other matters [Art.

22(7)]. ii) Untouchability
maximum period
under Art. 17. Forced labour (Bonded labour) was
was abolished and forbidden
as the States have the authority
to make
prohibited by Art. 23. The Union as well
The Parliament has enacted
a punishable offence.
untouchability and bonded labour (Abolition)
1955 and the Bonded Labour System
the Protection of Civil Rights Act, of enactments supplementing the
1976. These two Acts are examples
Act, The Basic provisions relating
to the election of the
constitutional provisions. (iv) contained in the Constitution but under
are
President and the Vice-President Presidential and Vice-Presidential Elections
enacted the
Art. 71(3) Parliament has for member-
procedure etc. Similarly qualification
Act, 1952 which contains detailed
and disqualification for membership
(Art. 102) are
ship of Parliament (Art. 84)
governed by relevant Acts.
the exigencies without
This method facilitates changes depending on
amendment.
resorting to a Constitutional and shall remain
transitional or tentative character
(e) Some Articles are of are Art. 285
on the subject. Examples
in operation till the Parliament legislates
from State taxation) and
Art. 300 (Suits and
(Exemption of Union Property
Government of India.)
Proceedings against the is prudent and
wide variety of modes for bringing about changes
This
practical.

A federal constitution makes a demarcation of powers between

2.7 V.
the Union and the States which is guarded against
In-built mechanism to Chinese wall
encroachment. In certain situations this
mitigate rigidity.
creates practical hassles. The Constitution has avoided
this to a large extent b y ,

(a) making a long list of concurrent subjects.

Parliament.
(b) providing that some provisions may be changed by
on State subjects under certain
(c) providing that Parliament may legislate
circumstances, e.8.
i) to give effect to international agreements (Art. 253)
(ii) with the consent of the States (Art. 252).
(iii) during Emergency (Art. 250).
(iv) in the national interest when the Rajya Sabha passes a resolution by

2/3rd members present and voting (Art. 249).

2.8 VI. Some Constitutions are so moulded that they cannot shed their.
characteristics in response to emergent.situations.Our
Copversion of Federal to Constitution has an in-built mechanism to convert t
nitary system during
emergency. intoa more or tess unitary torm when the nation s
faced with a calamity. The U.S. Constitution lacks
to
such approach but during war the U.S. Judiciary gave vide interpretation
defence power strengthening the hands of the Union.
2.9 VII. A federation may have Union and State Civil and
judiciary and
States.
Criminal laws may also be different in different
Unity in basic matters. in the
The persons administering the laws may be
U.S.A. But under
employment of a particular State. This is what operates in the
our Constitution there i s ,
 Salient Features of the Constitution 29
2.14]
(a) a single judiciary (no separate judiciary for federal laws).
the same in all
(6) Civil and criminal laws and procedure are basically
states
the
()The Indian Administrative service, the Indian Police SerVice and
Indian Forest Service are common to the Union and the States. More such all ndia
services may be created if need be.

2.10 VIII. A federal constitution may contain the constitution ot the

Union and the States but our Constitution is unique
Three tier government.
in providing for the Constitution and powers of
Panchayats and Municipalities also. Thus it envisages three tier government.

2.11 LX. The Constitution.confers.on the-people-certain-rights.which are

Pundamental Rights. called Fundamental Rights e.g Right to equality,
Freedom of speech,Right to lifeand personalliberty
etc. The State may impose only such restrictions on these rights as may be
permissible. The right to move the Supreme Court to enforce these rights is
guaranteed. It contains some rights which are found in no other Constitution
Rights against untouchability, forced labour and preventive detention. Our
Constitution expresses in a compen-dious form the limitations and exceptions to
the Fundamental Rights.
2.12 X. The Constitution enumerates certain principles which though
Difective Principles. notjusticiable or enforceable through a court of law
areregarded as fundamental-in the governance of.the
country. The Constitution makers regarded their inclusion in the Constitution as
a reminder that though non-enforceable the State must endeavour to implement
them and honour them as policy blueprints for. all future governments to.whichever
party it may belong
2.13 XI. In England the Parliament is sovereign and the.courts have.no
Judicial Review. power to examine.and pronounce on the vires.of an
Act of Parliament..The American people had the
painful experience that an elected body of people, the English Parliament, can act
in the manner of a tyranneous autocrat. The U.S. Supreme Court has, interpreting
the Constitution, declared that Constitution is a law higher than ordinary legislation
and a law that does not conform to the Constitution has no claim to validity.
TheIndianexperiencewiththe British rule was asad tale ofrepression and
denial of basic human-rights. Fhe-Magne-Charte,-the-English democratie system
andthe Rule of law were used ta-rample.and deny human.rights to the Indians.
TheAll Parties Committe headed by Motilal Nehru in its report in 1928 wanted
that Our first care should be to have our findamental rights guaranteed in a
manner which will not permit their withdrawal under any circumstances
Hence the founding fathers expressly made judicialreview a part of the
fundamental rights.(Art 13).and gave.the SupremeCourt (Art 32) and the High
Courts (Art. 226) the role of sentinels
2.14 XII. An unusual feature of the Constitution which is unparalleled
is that it contains a Schedule (9th) in which about
Protection given by 9th 300 Acts are listed. Art 31B contains a deciaration
Schedule.
which makes all these Acts completely immune from
Judicial review even on the ground of violation of a Fundamental Right
 (2.20
Introduction to the Constinution of India
30
regarding.appointment.transter

XIII. By various proxisions

2.15 payment.of.salary.ete.the- Constitation.attempts.jo
the.cxecutive
undependent judiciary. make the judiciary independent.of
suhodinate-judiciary-also
This applies to
establishes Parliamentary form of govern-
2.16 XIV. The Constitution
is based on Westminster (British) model
ment which
President, even though elected,
Parliamentary form of Under this form the
but does not rule the nation. He
Government.
represents the nation
Minister is the head of the Govemment
State while the Prime
is the head of the who is not a member of
are members
of Parliament. A person
The Ministers The Council
for a period of 6 months).
Parliament cannot be a minister (except the Lok
responsible to
ministers are collectively called) are
of Ministers (as the
hold office only if the majority in Lok Sabha supports
Sabha. In other words they
confidence.
them and must resign on losing

Constitutions are categories (1) Unitary

divided into two broad
2.17 XV.
there is one
and (2) Federal. In the Unitary type
Federal Constitution. central polity and there is no subsidiary sovereign
A Federal Constitution has two polities existing
polity, sharing powers with it.
in the area assigned to it. The Constitution
simultaneously and each is sovereign have been assigned
creats a Union and 28
States to whom powers and functions
U.S. Constitution.
In this way it resembles the
In keeping
2.18 XVI. The Preamble declares India to be a Republic.
with this the Constitution provides for an
elected
Republic President. In a republic there is no hereditary ruler

and all the authorities of the State are directly or indirectly elected by the people
2.19 XVII. The Constitution provides safeguards to the minorities by

Safeguards to Minorities
including the Freedom of Religion (Arts. 25 to 28)
and Cultural and Educational Rights (Arts. 29 and
clause (Art. 14)
30) in the list of Fundamental Rights. After enacting the equality
there was no legal necessity to place such safeguards but the framers have granted
these rights expressly even though they flow from Art. 14.

2.20 XVIl. The Constitution gave limited supremacy to the judiciary

defining the limits in Art 13. Supremacy was given
Judicial Supremacy. to the legislature as much as it is possible within the
bounds of a written constitution. While interpreting Art. 21 (Protection of Life and
Personal Liberty) in A.K. Gopalan' the Supreme Court had clarified that there wa
no due process clause in the Constitution and so it has no such wide powers of
judicial review as the U.S. Supreme Cout. But in 1978 after Maneka Gandhi" the
Supreme Court has discovered due process in Art. 21 and assumed powers sim
to those exercised by the U.S. Supreme Court and has vested in itselfthe power
to declare void even amendments to the Constitution (Minerva Mills)

3. A.K. Gopalan v. State of Madras, A.LR. 1950 S.C. 28: (1950) S.C.R. 88.
Maneka Gandhi v. Union of India, A.LR. 1978 S.C. 718
Minerva Mills v. Union of India, A.LR. 1980 S.C. 1789.
 Salient Features of the Constitution 31
2.26
2.21 XIX. Seats are reserved in the legislatures for Scheduled Castes
and Tribes. The State is free to make special provision
Favours to backward
classes etc.
for the advancement of socially and educationally
backward classes [Art. 15(4)] and for women and
children [Art. 15(3)]. In public employment appointments may be reserved for
Scheduled Castes and Tribes [Art. 16(4) and (4A)].

2.22 XX, Elections to Legislatures are on the basis of adult suffrage, In

niversal franchise. other Words-every citizen who isnot less than 18

years .of age (till-1988 it was 21-years) is.entitledto
be registered as a yoter (Art. 326)

2.23 XXI. At the time of Independence India had about 600 States
having around 9 crore population ruled by Princes.
Integration of Indian States.
There were no elected legislatures (except in a few
e.g. Mysore, Travancore-Cochin and Saurashtra) and no democracy. The Government
of India Act was an alliance between democracies and dynasties. When the Indian
States entered the Constituent Assembly it was thought that the Constitution of
these States would not form part of the Constitution of India. The Constitution has
integrated around 600 States and eliminated centuries old autocracies. The Princes
willingly shed their privileges. The Constitution is a memorial to this bloodless
revolution by which about 9 crores people were granted democratic rights as
citizens of India. (The 7th mendment).

2.24 XXII. In the U.S. Constitution the Bill of Rights enumerates the
rights guaranteed to the citizens and others. In the
Restrictions on nature of things no right can be absolute. The Courts
Fundamental Rights.
in the U.S. have gradually evolved, in the face of
necessity, the restrictions that may be imposed on the exercise of these rights. Our
Constitution gaining from experience and history incorporates the grounds on
which the fundamental rights may be subjected to restrictions. For example, the
Freedom of Speech and Expression may be curtailed in the interests of sovereignty
and integrity of India, security of the State, public order, deceney, morality,
contempt of court etc. In U.S.A. the courts invented the doctrines of police power.
eminent domain, clear and present danger etc.

2.25 XXIII.
From 1919 seats were reserved in the legislatures on the
basis of religion. In the Government of India Act. 1935
No communal seats were distributed among Muslims, Christians,
representation.
Sikhs and Anglo-Indians, apart from reservation in
favour of the Scheduled Castes and Tribes. Communal electorate and reservation
was a device adopted by the British to prevent the growth of a healthy and sound
democracy. The Constitution makes no reservation on the basis ofreligion. There
1s no place for communal representation (Art. 325).
2.26 XXIV. Another important characteristic of the Constitution is that
it has borrowed (or copied) features of many
Borrowed from various Constitutions. The framers proudly acclaimed, in the
Sources.
face of adverse remarks, that it has been prepared