“The Knowledge Library”

Knowledge for All, without Barriers…

An Initiative by: Kausik Chakraborty.

“The Knowledge Library”

Knowledge for All, without Barriers……….
An Initiative by: Kausik Chakraborty.

The Knowledge Library

SALIENT FEATURES OF THE CONSTITUTION

    • EVERY Constitution has a philosopHy of its own.
    • For the philosophy underlying our Constitution, we must look back to the historic Objectives Resolution of Pandit Nehru which was adopted by the Constituent Assembly on January 22, 1947, and which inspired the shaping of the Constitution through all its subsequent stages. It reads thus –
    • “This Constituent Assembly declares its firm and solemn resolve to proclaim India as the Independent Sovereign Republic and to draw up for her future governance a Constitution:
    • WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into Independent Sovereign India, shall be a Union of them all; and
    • WHEREIN the said territories, whether With their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of Government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and WHEREIN all powers and authority of Sovereign Independent India, Its constituent parts and organs of Governments are derived from the people, and Wherein shall be guaranteed and secured to all the people of India Justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to the law and public morality and WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other baokwards; and WHEREIN shall be maintained the integrity of the territory of the Republic and Its sovereign rights on land, sea, and air according to justice and the law of civilized nations.
    • The  ancient land attains Its rightful and honored place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.”

The Preamble

    • The aforesaid Resolution was “something more than a resolution. It is a declaration, a firm resolve, a pledge, an undertaking, and for all of us a dedication”
    • It will be seen that the ideal embodied in the above Resolution is faithfully reflected in the Preamble to the Constitution, which, as amended in 1976, summarises the aims and objects of the constitution.
    • The importance and utility of the Preamble have been pointed out in several decisions of our Supreme Court. Though by itself, it is not enforceable In a Court of law, the Preamble to a Written Constitution states the objects which the Constitution seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous.
    • The Preamble to our Constitution serves, two purposes:
      • It indicates the source from which the Constitution derives its authority
      • It also states the objects that the Constitution seeks to establish and promote.
    • As has been already explained. the Constitution of India, unlike the preceding Government of India Acts, is not a gift of the Sovereign the British parliament, It is ordained by the people of India through their representatives assembled in a sovereign Constituent Assembly which was competent to determine the political future of the country in any manner it liked.
    • Sovereignty means the independent authority of a State. It means that it has the power to legislate on any subject; and that It is not subject to the control of any other State or external power.
    • The Preamble declares, therefore in unequivocal terms that the source of all authority under the Constitution is the people of India and that there is no subordination to any external authority. While Pakistan remained a British Dominion until 1956, India ceased to be a Dominion and declared herself a ‘Republic’ since the making of the Constitution in 1949. It means a government by the people and for the people.

Membership in the Commonwealth of Nations

    • On and from the 26th Jan 1950, when the Constitution came into force, the Crown of England ceased to have any legal Or constitutional authority over India and no citizen of membership of India was to have any allegiance to the British Crown.
    • But though India declared herself a Republic, she did not sever all ties with the British Commonwealth as did Eire, by enacting the Republic of Ireland Act, 1948.
    • In fact, the conception of the Commonwealth itself has undergone a change owing to India’s decision to adhere to the Commonwealth, without acknowledging allegiance to the Crown which was the symbol of unity of the Old British Empire and also of its successor, the ‘British Commonwealth of Nations.
    • It is this decision of India which has converted the ‘British Commonwealth’, a relic of Imperialism, -into a free association of independent nations under the honorable name of the ‘Commonwealth of Nations,
    • This historic decision took place at the Prime Ministers’ Conference in London on April 27, 1949, where our Prime Minister, Pandit Nehru, declared that notwithstanding her becoming a sovereign independent Republic. India will continue her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of the independent nations and as such the Head of the Commonwealth.”
    • It Is to be noted that this declaration is extra-legal and there is no mention of it in the Constitution of India. It Is a voluntary declaration and indicates a free association and no obligation.
    • It accepts the Crown of England only as a symbolic head of the Commonwealth (having no functions to discharge in relation to India as belonged to him prior to the Constitution) and having no claim to the allegiance of the citizens of India.
    • Even if the King or Queen of England visits India, he or she will not be entitled to any precedence over the President of India. Again though as a member of the Commonwealth, India has a right to be represented at Commonwealth conferences decisions at Commonwealth conferences will not be binding on her and no treaty with a foreign power or declaration of war by any member of the Commonwealth will be binding on her without her express consent.
    • Hence, this voluntary association of India with the Commonwealth does not affect her sovereignty to any extent and it would be open to India to cut off that association at any time she finds it not to be honorable or useful.

Promotion of International Peace

    • The great magnanimity with which India took this decision In the face of a powerful opposition at home was the natural reaction of the manifold grievances under the imperialistic rule, and the great fortitude with which the association has still been maintained under the pressure of repeated disappointments, the strain of baffling international alignments and the 1976 upsurge of racialism in England, speak volumes about the sincerity of India’s pledge to contribute ‘to the promotion of world peace which is reiterated in Art. 51 of the Constitution :
      • promote international peace and security;
      • maintain just and honorable relations between nations;
      • foster respect for International law and treaty obligations In the dealings of organized people with one another; and
      • encourage settlement of international disputes by arbitration.”
    • The fraternity which is professed in the Preamble is thus not confined within the bounds of the national territory; it is ready to overflow them to reach the loftier ideal of universal brotherhood; Thus, though India declares her sovereignty to manage her own affairs, in no unmistakable terms, the Constitution does not support isolationism or Jingoism’. Indian sovereignty is consistent with the concept of ‘one world’ international peace and amity.

Democracy

    • The picture of a ‘democratic republic’ that the Preamble envisages is democratic not only from the political but also from the social standpoint; in other words, it envisages not only a democratic form of government but also a democratic society, infused with the spirit of ‘justice, liberty, equality, and fraternity.
    • As a form of government, the democracy which is envisaged is, of course, representative democracy and there are in Constitution no agencies of direct control by the people, such as ‘referendum, or ‘initiative’.
    • The people of India are to exercise their sovereignty through a Parliament at the Centre and a Legislature in each State, which is to be elected on adult franchise and to which the real Executive, namely, the Council of Ministers, shall be responsible.
    • Though there shall be an elected President at the head of the Union and a Governor nominated by the President at the head of each State, neither of them can exercise any political function without the advice of the Council of Ministers, which is collectively responsible for the people’s representatives in the respective Legislatures (excepting functions which the Governor is authorized by the Constitution itself to discharge In his discretion or on his individual responsibility), The Constitution holds out the equality to all the citizens in the matters of choice of their representatives, who are to run the governmental machinery.
    • Also known as parliamentary democracy, it envisages (I) representation of the people, (ii) responsible government, and (ill) accountability of the Council of Ministers to the legislature.
    • The essence of this Is to draw a direct line of authority from the people through the legislature. The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the legislature as representatives of the people. The members of the legislature, thus, must owe their power directly or indirectly to the people.
    • The idea of a democratic republic enshrined in the Preamble of the Constitution can be best explained with reference to the adoption of Government of universal suffrage and the complete equality between the Sexes not only before the law but also In the political sphere.
    • Political Justice means the absence of any arbitrary distinction between man and man in the political sphere. In order to ensure the ‘Political’ Justice held out by the Preamble, it was essential that every person in the territory of India, Irrespective of his proprietary or educational qualifications, should be allowed to participate in the political system like any other person.
    • Universal adult suffrage was adopted with this object in view. This means that every five years, the members of the Legislatures of the Union and of each Stale shall be elected by the vote of the entire adult population, according to the principle-‘one man, one vote.
    • The offering of equal opportunity to men and women, Irrespective of their caste and creed, in the matter of public employment also implements this democratic ideal. The treatment of the minority, even apart from the constitutional safeguards, clearly brings out that the philosophy underlying the Constitution has not been overlooked by those in power.
    • The fact that members of the Muslim and Christian communities are as a rule being included in the Council of Ministers of the Union as well as the States, in the Supreme Court, and even in Diplomatic Missions, without any constitutional reservation on that behalf, amply demonstrates that those who are working the Constitution have not missed Its true spirit, namely, that every citizen must feel that this is country is his own.
    • That this democratic Republic stands for the good of all the people is embodied in the concept of a ‘Welfare State’ which transpires the Directive Principles of State Policy. The ‘economic justice’ assured by the Preamble can hardly be achieved if the democracy envisaged by the Constitution were confined to a ‘political democracy’.

Economic Justice

    • The State in a democratic society derives its strength from the cooperative and dispassionate will of all its free and equal citizens. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity
    • The banishment of poverty, not by expropriation of that who have wealth, but by the multiplication of the national wealth and resources and an equitable distribution thereof amongst all who contribute towards its production, is the aim of the State envisaged by the Directive Principles.
    • Economic democracy will be installed in our sub-continent to the extent that this goal is reached. In short. economic justice aims at establishing economic democracy and a ‘Welfare State’.
    • The ideal of economic justice is to make equality of status meaningful and life worth living at its best removing inequality of opportunity and of status–social, economic, and political.

Social justice

    • Social justice is a fundamental right, Social justice is the comprehensive form to remove social imbalance by law harmonizing the rival claims or the interests of different groups and/or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State.
    • Liberty, equality, and fraternity have to be secured and protected with economic empowerment and political justice for all the citizens under the rule of law.
    • Liberty: Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for a free and civilized existence, are assured to every member of the community. The Preamble mentions these essential individual rights as ‘freedom of thought, expression, belief, faith and worship, and these are guaranteed against all the authorities of the State by Part III of the Constitution subject, of course, to the implementation of the Directive Principles, for the common good and the ‘fundamental duties’, introduced [Art. 51A]. by the 42nd Amendment, 1976.
    • ‘Liberty’ should be coupled with social restraint and subordinated to the liberty of the greatest number for common happiness.

Equality

    • Guaranteeing certain rights to each individual would be meaningless unless all Inequality is banished from the social structure and each individual is assured of equality of status and opportunity for the development of the best In him and the means (or the enforcement of the rights guaranteed to him.
    • This object is secured in the body of the Constitution, by making illegal all discriminations by the State between citizens, simply on the ground of religion, race, caste, sex, or place of birth by throwing open ‘public places’ to all citizens by abolishing untouchability, by abolishing titles of honor; by offering equality of opportunity in matters relating to employment under the State; by guaranteeing equality before the law and equal protection of the laws, as justiciable rights
    • In addition to the above provisions to ensure civic equality, the Constitution seeks to achieve political equality by providing for a universal adult franchise [Art. 326] and by reiterating that no person shall be either excluded from the general electoral roll or allowed to be Included In any general or special electoral roll, only on the ground of his religion, race, caste, or sex.
    • The realization of so many objectives would certainly mean an expansion of the functions of the State. The goal of Society envisaged by the Constitution, therefore, is that of a ‘Welfare State, and the establishment of a ‘socialist state’.
    • That the goal of the Indian polity is socialism was ensured by inserting through the 42 Amendment the word ‘socialist’ in the Preamble. It has been inserted “to spell out expressly the high ideals of socialism”.
    • It is to be noted, however, that the ‘socialism’ envisaged by the Indian Constitution is not the usual scheme of State socialism which involves ‘nationalization’ of all means of production, and the abolition of private property.
    • Though the word ‘Socialism’ is vague, our Supreme Court has observed that Its principal aim is to eliminate inequality or income and status and standards of life and to provide a decent standard of life to the working people.
    • The Indian Constitution, therefore, does not seek to abolish private property altogether but seeks to put it under restraints so that it may be used in the interests of the nation, which includes the upliftment of the poor.
    • Instead of a total nationalization of all property and Industry, it envisages a ‘mixed economy, but aims at offering ‘equal opportunity to all, and the abolition of ‘vested Interests’.
    • From 1992 onwards the trend is now away from socialism to privatization.
    • Investment in many public enterprises has been divested in favor of private persons and many industries and services which were reserved for the government sector have been thrown open for private enterprise.
    • This is in keeping with the worldwide trend after the collapse of socialism in the U.S.S.R, and East European countries. But the constitutional obligation to pay compensation to the private owner for State acquisition has been taken away by repealing Art. 31, by the Constitution (44th Amendment) Act, 1978.

Need for Unity and integrity of the Nation – Part of the basic structure of the Constitution

    • Unity amongst the inhabitants of this vast sub-continent, torn asunder by a multitude of problems was the first requisite for maintaining the independence of the country as well as to make the experiment of democracy successful.
    • But neither the integration of the people nor a democratic political system could be ensured without infusing a spirit of brotherhood amongst the heterogeneous population, belonging to different races, religions, and cultures.
    • The ‘Fraternity’ cherished by the framers of the Constitution will be achieved not only by abolishing untouchability amongst the cliJIerent sects of the same community but by abolishing all communal or sectional or even local or provincial ann-social feelings which stand in the way of the unity of India.
    • Democracy would indeed be hollow if it fails to generate this spirit of brotherhood amongst all sections of the people – a feeling that they are all children of the same soil, of the same Motherland.
    • The unity and fraternity of the people of India, professing numerous, Faiths, has been sought to be achieved by enshrining guaranteeing the ideal of a ‘secular State” which means that the State protects all religions equally and does not itself uphold any religion as the State religion.
    • The question of Secularism is not one of the sentiments, but one of law. The secular objective of the State has been specifically expressed by the 42nd Amendment inserting the word ‘secular’ in the Preamble the in 1976
    • There is no provision in the Constitution-making any religion the ‘established Church’ as some other Constitutions do. On the other hand, the liberty of ‘belief, faith, and worship’ promised in the Preamble is implemented by incorporating the fundamental rights of all citizens relating to ‘freedom of religion’ in the Arts. 25-28, which guarantees each individual freedom to profess, practice, and propagate religion, and assures strict Impartiality on the part of the State and its institutions towards all religions.

The dignity of the Individual

    • A fraternity cannot, however, be installed unless the dignity of each of its members Is maintained. The Preamble, therefore, says that the State, in India, will assure the dignity of the individual. Our Supreme Court has come to hold that the right to dignity is a fundamental right,
    • The Constitution seeks to achieve this object by guaranteeing equal fundamental rights to each individual so that he can enforce his minimal rights if invaded by anybody in a court of law.
    • Seeing that these Justiciable rights may not be enough to maintain the dignity of an individual if he Is not free from wants and misery, a number of Directives have been molded in Part IV of the Constitution, exhorting the State so to shape its social and economic policies that, inter alia., “all citizens, men, and women equally, have the right to an adequate means of livelihood” [Art. 39(a)], “Just and humane conditions of work” [Art. 42], and “a decent standard of life and full enjoyment of leisure and social and cultural opportunities”.
    • In order to remove poverty and to bring about a socio-economic revolution, the list of Directives was widened by the Constitution (42nd Amendment) Act, 1976, and it was provided that – in order that such welfare measures for the benefit of the masses may not be defeated any measure for the implementation of any of the Directives shall be immune from any attack in the Courts on the ground that such measure contravenes any person’s fundamental rights under Art. 14 or 19.

Fundamental Duties

    • The philosophy contained in the Preamble has been further highlighted by emphasizing that each individual shall not only have the fundamental rights in Part III of the Constitution to ensure his liberty of expression, faith and worship, equality of opportunity, and the like, but also a corresponding fundamental duty, such as to uphold the sovereignty, unity, and Integrity of the nation, to maintain secularism and the common brotherhood amongst all the people of India.
    • This has been done by inserting Art, 51A, laying down ten ‘Fundamental Duties’, by the Constitution (42nd Amendment) Act, 1976
    • Combining the ideals of political, social, and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as “India or My Dreams”

Introduction

Lengthiest written constitution: 465 articles [25 parts] and 12 schedules. This can be due to vast geographic factors, vast historical factors, a single constitution for centers and states, and the dominance of legal luminaries in the assembly.

Drawn from various constitutions of the world: Structural part [GoI Act, 1935], political part [British constitution].

Partly rigid and flexible

Federal with unitary bias: There are certain federal features of the constitution viz. Two governments, separation of powers, bicameralism, written constitution – rigid and supreme, independent judiciary. The non-federal features are the strong center, single constitution, single citizenship, no equal representation to states in the upper house, destructible states, states can’t cede from the union, integrated audit, and election machinery. All India service, the appointment of the governor, and a veto over state bills.

Parliamentary form of government: Indian democracy is based on the Westminster model i.e. Leadership of PM, dissolution of the lower house, dual membership of the Executive, Legislature is supreme, and Majority party rule. However, some differences between the Indian and British systems are Indian Parliament isn’t a sovereign body unlike the British and President isn’t a hereditary head but is elected.

The balance between Judicial and Parliamentary supremacy: Indian constitution has mentioned “Procedure established by law” which reduces judicial review by courts unlike in the USA [“due process of law”].  Thus Indian courts can invalidate laws only if they are unconstitutional, but parliament can use its constituent power to amend the constitution.

Integrated and independent judiciary: A single system of courts enforces both union and state laws. Independence of courts is ensured by the security of tenure, protection against arbitrary removal, all-expense charged on the consolidated fund, ban on employment after retirement, and contempt of court.

Fundamental rights: Justifiable by courts. Guarantee political democracy. Inspired by the USA constitution.  Protect against arbitrary laws of legislature and tyranny of executive. The courts can issue writs to enforce these rights. These can be suspended during an emergency. However reasonable restrictions can be placed on these rights.

Directive principles of state policy: These are nonjustifiable, non-enforceable by courts. They are meant to promote social, and economic democracy. They are inspired by the Irish constitution. They are also part of the Instrument of instructions in the GoI Act, 1935.

Fundamental duties: These were added by the 42nd amendment. They are inspired by the Russian constitution. They are non-justifiable and non-enforceable by courts.

Secular state: This word was added to the preamble by the 42nd amendment. Western concept of secularism “Separation of church and state” doesn’t apply to India due to its multi-religious nature. Indian secularism is positive “State shall treat all religions equally”.

Universal franchise: This was unanimously agreed upon by the constituent assembly. All people above age 18 [reduced from 21 by the 61st constitution amendment] can vote. This ensures broad-based participation in democracy.

Single citizenship: Irrespective of the state in which they are born or reside all people enjoy the same political rights.

Independent bodies: Certain bodies have been created like CAG, EC, UPSC, etc.

Emergency provision: To protect sovereignty, security, integrity, and unity constitution has certain emergency powers. During emergencies, the center becomes all-powerful, and states go into their total control. This converts federal structure into unitary without formal amendment to the constitution [unique feature].

Constitutional recognition of local governments [73rd, 74th amendment] is also unique to India.

Inspired by other constitutions

        Fundamental rights – USA

        Fundamental duties – USSR

        Directive principles – Irish

        The procedure established by law – Japan

        Scheme of Indian federation, residuary powers – Canada

        Procedure to amend the constitution – South Africa

        Emergency powers – Germany

        Concurrent list – Australia

        Liberty, equality, fraternity – French

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KAUSIK CHAKRABORTY

KAUSIK CHAKRABORTY

Founder Director

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