Indian Constitution: Democracy, Rights & Diversity

Indian Constitution: Democracy, Rights & Diversity

• Unparalleled Length: The Indian Constitution is renowned as one of the most detailed, comprehensive, and elaborate written constitutions globally.
• Original Composition: At its inception in 1949, the Indian Constitution comprised a Preamble, 395 Articles (organized into 22 Parts), and 8 Schedules.
• What Makes It So Vast: Several factors contributed to the constitution’s monumental scale, include 
  • India’s vast territory, diversity and historical context, 
  • A single constitution for both the central and state governments, 
  • The influence of legal experts in its creation.
• Inclusion of Ordinary Legislation: Indian Constitution encompasses not only constitutional provisions but also ordinary legislation and parliamentary conventions, further adding to its length and complexity.
• Growing Document: Today, the Indian Constitution has evolved to include a Preamble, approximately 470 Articles, organized into 25 Parts, and enriched with 12 Schedules.

• The majority of the articles of the Indian Constitution were derived from other countries’ constitutions as well as the Government of India Act of 1935.
  • Dr B R Ambedkar proudly acclaimed that the Indian Constitution has been framed after ‘ransacking’ all the known Constitutions of the World. 
  • Government of India Act of 1935 was the parent document for drafting free India’s constitution which formed the structural part of the constitution. This act has the most profound impact in making of the constitution.
  • Philosophical part derived from the constitution of the USA and Irish Constitution. Fundamental Rights from USA and Directive Principles of State Policies from Irish Constitution.
  • The political part of the Constitution) have been largely drawn from the British Constitution For example, Cabinet form of government and the interaction between and the legislature and  the executive
  • Russia (old USSR), France,South Africa, Germany, Japan, Canada etc the countries from which other provisions were drawn.

• The word “federation” does not appear in the Constitution anywhere. Article 1 refers to India as a “Union of States.”
  • Mention of Union of states implies India do not formed as a agreement between state like USA ,also No state has right to secede from the Union
• Features of the Federal Government: It includes two governments, a written Constitution, bicameralism, the supremacy of the Indian Constitution, and many others.
• Unitary/Non-Federal Characteristics: It includes a strong central, a single constitution, a single citizenship, an integrated court, all-India services, emergency provisions, and so on.

• The Indian Constitution is neither rigid (like USA) nor flexible (like Britain), but a blend of both.
  • Article 368 provides two kinds of amendment procedures
    • Some provisions can be amended by a special majority of the Parliament
    • Few provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.
  • Whereas there are some provisions which do not come under Article 368 but constitution can be amended with simple majority

• The Indian Constitution has preferred the British Parliamentary System (Westminster model) of government over the American Presidential System of government, where Executives remain responsible to the Parliament.
  • However, India adopted the Republic Head (Elected) in place of the Monarchical head of the British who comes to the office by birth.
• The Constitution establishes the parliamentary system at Centre and also in the States. 
• Features: Presence of nominal and real executives; Rule of majority party; Leadership of the Prime Minister or the Chief Minister; Membership of the ministers in the legislature; Dissolution of the lower house (Lok Sabha).

• Sovereignty of Parliament is associated with the British Parliament
• whereas Judicial supremacy is associated with the American system.
• The framers of the Indian Constitution have applied proper synthesis between the British principle (parliamentary sovereignty) and the American principle ( judicial supremacy)
  • The scope of judicial review power of the Supreme Court in India is narrower than that of what exists in the US and Parliament is not supreme Like British Parliament.
• The Supreme Court through its power of judicial review can declare the parliamentary laws as unconstitutional whereas The Parliament can amend the major portion of the Constitution through its constituent power

• The Supreme Court is the apex of the country’s integrated judicial system, followed by state high courts, subordinate courts, and various lower courts. 
• The Supreme Court is the highest court of appeal, the protector of citizens’ basic rights, and the defender of the constitution. 
  • To protect independence of various provisions made in the Indian Constitution itself like
    • Independence—security of tenure of the judges,
    • All the expenses of the Supreme Court charged on the Consolidated Fund of India,
    • Fixed service conditions for the judges, 
    • Prohibition on discussion on the conduct of the judges ,
    • Ban on practice  after retirement, 
    • Power to punish for its contempt vested in the Supreme Court
    • Separation of the judiciary from the executive etc.
• India has a single court system that enforces both federal and state laws.
  •  Article 21 specifies “procedure established by law.” 
• In the United States, state laws are upheld by local courts, whereas federal laws are upheld by the federal judiciary. It provides for ‘due process of law’.

• They are meant for promoting the ideals of political democracy. 
• Part III of the constitution guarantees six FRs to all the citizens:

1. 1. Right to equality (Article 14-18)
   2. Right to freedom (Article 19-22)
   3. Right against exploitation (Article 23-24)
   4. Right to Freedom of Religion (Article 25-28)
   5. Cultural and Educational Rights (Article 29-30)
   6. Right to Constitutional Remedies (Article 32)

• FR acts as a limitation on the legislature (arbitrary laws) and on the executive (arbitrary actions) organ of the state.
  • However, FR are not absolute but subject to reasonable restrictions.
  • They are not sacrosanct and can be curtailed or repealed by the Parliament through a constitutional amendment act.For example, Right to Property was removed as FR by 44th Amendment Act.
  • They can also be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
• In accordance with Article 32, if a citizen of India’s fundamental rights is violated, the aggrieved party may seek redress directly from the Supreme Court, which may then issue writs of Habeas corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.

• It is found in Part IV of the constitution.
• To promote the ideals of social and economic democracy.
• Non- justiciable in nature, i.e. they are non-enforceable by the courts for their violation.
• Classified into three: Socialistic, Gandhian and liberal-intellectual (This classification is not in the Indian Constitution)
• Aim: to establish a ‘welfare state’ in India. 
• Significance: The Indian Constitution itself declares that these are the fundamental principles in the governance of the country and it shall be the duty of the state to apply these principles in making laws. 
• Dr B R Ambedkar declared these Principles are  a ‘novel feature’ of the Indian Constitution.
• In the Minerva Mills case (1980), the Supreme Court said that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.

• They were included in the Indian Constitution through the 42nd Amendment Act after the recommendations of the Swaran Singh Committee.
• Part IV-A of the Constitution, specifically in Article 51-A.
• There are a total of 11 Fundamental Duties mentioned in this article.
• 86th Constitutional Amendment Act in 2002: It  directs citizens to provide opportunities for education to his child or ward between the age of six and fourteen years.
• They are non-justiciable, meaning they cannot be enforced through the courts.
• India is only democratic country to include fundamental duty in the Indian Constitution (except Japan)
• They serve as reminders to the citizens that while enjoying their rights, Citizens should also have awareness about their duties that they owe to the country,    society ,brotherhood, womens etc.

• The term “secular” was included in the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.
• It signifies that the Indian State does not favor or endorse any specific religion as its official religion.
• The Western concept of secularism involves a complete separation between religion (church) and politics (state).
• The Indian concept of secularism, on the other hand, embraces a positive approach, which means giving equal respect to all religions and safeguarding them equally.
• Several Provisions in the Constitution promote which include 
  • Preamble-term ‘secular’
  • equality before the law or equal protection of the laws (Article 14)
  • Prohibition on Discrimination based Religion (Article 15)
  • Equality of opportunity in matters of public employment (Article 16)
  • Right to Freedom of Religion (Article 25-28)
  • Right to conserve  distinct language, script or culture (Article-29)
  • Right to establish and administer educational institutions (Article 30)
  • A Uniform Civil Code (Article 44)
  • The Indian Constitution has also abolished the old system of communal representation(i.e Reservation based on religion).

• The voting age was lowered from 21 years to 18 years in 1989 through the 61st Constitutional Amendment Act of 1988.
• Universal adult franchise forms the foundation for elections to the Lok Sabha (the lower house of Parliament) and state legislative assemblies.
  • It makes democracy broad-based, enhances the self-respect and prestige of the common people, upholds the principle of equality, 
  • It enables minorities to protect their interests and opens up new hopes and vistas for weaker sections.
  • It gives sense belongingness to the Nation and provides opportunity to select their representatives irrespective of caste, religion,sex etc

• Though India is federal and dual polity but provides Single Citizenship unlike USA.
  • All citizens irrespective of the state enjoy the same political and civil rights of citizenship all over the country. 
  • No discrimination is made between them excepting in few cases like tribal areas, Inner Line permit areas, Jammu and Kashmir etc
  • In the USA, each person is not only a citizen of the USA, but also a citizen of the particular state to which he belongs. 

• Other than the legislature, the executive and Judicial organ constitution provides Independent Bodies like Election Commission, Comptroller and Auditor General, Union Public Service Commission, State Public Service Commission. Dr B R Ambedkar termed these bodies as bulwarks of the democratic system of Government in India.

• The Constitution  enables the President to meet any extraordinary situation effectively  to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.
  • National Emergency (Article 352) is declared on the ground of war or external aggression or armed rebellion to safeguard the nation’s interests 
  • State Emergency or President’s Rule is to protect the state in case of failure of Constitutional machinery in the state  or failure to comply with the directions of the Centre by the state (Article 365).
  • Financial Emergency (Article 360) is proclaimed to address economic crises and to maintain the financial stability of the state.
• During an emergency, the federal structure of the country temporarily transforms into a unitary one, without requiring a formal amendment of the Constitution. This kind of transformation (from federal to unitary) is unique to the Indian political system.

• Originally, the Indian Constitution was a federal with dual polity and contained provisions with regard to the organization and powers of the Centre and the states.
  • The 73rd and 74th Constitutional Amendment Acts (1992) added a third-tier of government (Local Government) which is not found in any other Constitution of the world.
• Article 40 also has the provisions for Organisation of village panchayats but being Directive principle it was not Justiciable. It is now constitutionally mandatory for the states to establish the third tier of the government.
• 73rd Amendment Act, 1992 gave Constitutional recognition to Panchayats (Part IX, Schedule 11) and by 74th Amendment Act of 1992, Constitutional recognition given to Municipalities (Part IX-A, Schedule 12)

• The 97th Amendment Act of 2011 gave Constitutional status and protection to co-operative societies.
• Right to form co-operative societies as a FR (Art. 19); 
• Added a new DPSP on promotion of co-operative societies (Art. 43B); 
• Added a new part IX-B entitled as “Co-operative Societies” (Art. 243-ZH to 243-ZT).

• Parliamentary government and Parliamentary privileges
• Legislative procedure , Cabinet system,  and Bicameralism.
• Rule of Law, Single citizenship, and Prerogative writs.

• Fundamental rights
• Independence of judiciary, Judicial review, and Removal of Supreme Court and high court judges
• Impeachment of the president and Post of vice-president.

• Directive Principles of State Policy
•  Nomination of members to Rajya Sabha and method of election of president.

• Federation with a strong Centre
• Vesting of residuary powers in the Centre
• Appointment of state governors by the Centre
• Advisory jurisdiction of the Supreme Court.

• Concurrent List
• Freedom of trade, Commerce and inter-course
• Joint sitting of the two Houses of Parliament.

• Suspension of Fundamental Rights during Emergency, 

• Fundamental duties and the ideal of justice (social, economic and political) in the Preamble.

• Republic and the ideals of liberty, equality and fraternity in the Preamble.

• Procedure for amendment of the Constitution and election of members of Rajya Sabha.

• Procedure established by Law.