OUTSTANDING FEATURES OF OUR CONSTITUTION

• • his extraordinary bulk of the Constitution is due to several reasons

• • 1. The framers sought to incorporate the accumulated experience gathered from the working of all the known Constitutions and to avoid defects and loopholes that might be anticipated In the light of those gathered from the working of all the known Constitutions. Thus, while they framed the Chapter on the Fundamental Rights upon the model of the American Constitution, and adopted the Parliamentary system of Govemment from the United Kingdom, they took the idea of the Directive Principles of State Policy from the Constitution of Ireland and added elaborate provisions relating to Emergencies in the light of the Constitution of the German Reich and the Government of India Act, 1935.

• • • On the other hand, our Constitution is more full of words than other Constitutions because it has embodied the modified results of judicial decisions made elsewhere interpreting comparable provisions, in order to minimize uncertainty and litigation.

• • • Not contented with merely laying down the fundamental principles of governance {as the American Constitution does), the authors of the Indian Constitution followed and reproduced the Government of India Act, 1935 in providing matters of administrative detai1, not only because the people were accustomed to the detailed provisions of that Act, but also because the authors had the apprehension that in the present conditions of the country the Constitution might be perverted unless the form of administration was also included in it.

• • • It was also felt that the smooth working of an infant democracy might be jeopardized unless the Constitution mentioned in detail things that were left in other Constitutions to ordinary legislation. This explains why we have in our Constitution detailed provisions about the organization of the Judiciary, the Services, the Public Service Commissions, Elections, and the like.

• • • The vastness of the country and the peculiar problems to be solved have also contributed to the bulk of the Constitution. Thus there is one entire Part XVII relating to the Scheduled Castes and Tribes and other backward classes; one Part [Part XVIII] relating to Official Language and another Part XVII] relating to Emergency Provisions.

• • • While the Constitution of the United States deals only with the Federal Government and leaves the States to draw up their own Constitutions, the Indian Constitution provides the Constitutions of both the Union and the Units (i.e., the States), with the same fullness and precision. Since the Units of the federation differed In their historical origins and their political development, special provisions for different classes of the Units had to be made, such as the Part B States (representing the former Indian States), the Part C States (representing the Centrally Administered areas) and some smaller Territories In Part D.

• • • Not only are the provisions relating to the Units elaborately given, the relations between the Federation and the Units elaborately dealt and the Unit’s interest, whether legislative or Dennis- with. transitive, are also exhaustively codified so as to eliminate conflicts as far as possible. The lessons are drawn from the political history of India which induced the framers of the Constitution to give it a unitary bias and also prompted them to make detailed provisions “regarding the distribution of powers and functions between the Union and the States in all aspects of their administrative and other activities”, and also as regards Inter-State relations, co-ordination and adjudication of disputes amongst the States.

• • • Even the Bill of Rights (i.e., the list of Fundamental Rights) became bulkier than elsewhere because the framers of the Constitution had to include novel matters owing to the peculiar problems of our country, e.g., untouchability, and preventive detention.

• • • Another distinctive feature of the Indian Constitution is that it seeks to Impart flexibility into a written federal Constitution. It is only the amendment of a few of the provisions of the Constitution that requires ratification by the State Legislatures and even then ratification by only 1/2 of them would suffice (while the American Constitution requires ratification by 3/4 of the States).

• • • Yet another evidence of this flexibility is the power given by the Constitution itself to Parliament to supplement the provisions of the Constitution by legislation. Though the makers of the Constitution aimed at exhaustiveness, they realized that it was not possible to anticipate all exigencies and to lay down detailed provisions in the Constitution to meet all situations and for all times.

Role of conventions under the Constitution

• • It is also remarkable that though the framers of the Constitution attempted to make an exhaustive code of organic law, the room has been left for the growth of conventions to supplement the constitution where it is silent.

• • Thus, while the Constitution embodied the doctrine of Cabinet responsibility in Art. 75; it was not possible to codify the numerous conventions which answer the problems as they may arise in England, from time to time, in the working of the Cabinet system.

• • Take, for instance, the question of whether the Ministry should resign whenever there is an adverse vote against it in the House of the People, or whether it is at liberty to regard an accidental defeat on a particular measure as a ‘snap vote’.

• • Again, the Constitution cannot possibly give any indication as to which issue should be regarded as a ‘vital issue by a Ministry, so that on a defeat on such an issue the Ministry should be morally bound to resign. Similarly, in what circumstances a Ministry would be justified in advising the President to dissolve Parliament instead of resigning upon an adverse vote can only be established by convention.

Indian Constitution has been described by critics as a ‘lawyer’s paradise’.

• • Fundamental Rights, included in Part III, are so enforceable at the instance of any person whose fundamental right has been infringed by any action of the State -Executive or legislative- and the remedies for enforcing these rights, namely, the writs of habeas corpus, mandamus, prohibition, quo Taranto, and certiorari, are also guaranteed by the Constitution. Any law or executive order which offends against a fundamental right is liable to be declared ‘Void’ by the Supreme Court Or the High Court.

• • It is through a misapprehension of these provisions that the Indian Constitution has been described by some critics as a ‘lawyer’s paradise. According to Sir Ivor Jennings, this is due to the fact that the Constituent Assembly was dominated by ‘the lawyer-politicians’. It is they who thought of codifying the individual Rights and the prerogative writs though none in England would ever cherish such an idea.

• • With due respect to the great constitutional expert, these observations disclose a failure to appreciate the very foundation of the Indian Judicial review Constitution. Sir Ivor omits to point out that the fathers of the Indian Constitution preferred the American doctrine of ‘limited government’ to the English doctrine of Parliamentary sovereignty.

• • In England, the birth of modem democracy was due to a protest against the absolutism of an autocratic executive and the English people discovered In Parliamentary sovereignty an adequate solution of the problem that faced them. The English political system Is founded on the unlimited faith of the people in the good sense of their elected representatives.

• • The Founding Fathers of the American Constitution, on the other hand, had the painful experience that even a representative body might be tyrannical, particularly when they were concerned with a colonial Empire. Thus it is that the Declaration of Independence recounts the attempts of the British “Legislature to extend an unwarrantable Jurisdiction Over us” and how the British people had been “deaf to the voice of Justice”. At heavy cost had the colonists learned about the frailty and weakness of human nature when the same Parliament which had forced Charles I to sign the Petition of Right (1628) to acknowledge that no tax could be levied without the consent of Parliament, did, in 1765, and the years that followed, insist on taxing the colonies, regardless of their right of representation and attempt to enforce such undemocratic laws through the military rule.

• • Hence, while the English people, in their fight for freedom against autocracy, stopped with the establishment of the supremacy of the law and Parliament as the sole source of that law, Americans had to go further and assert that there Is to be a law superior to the Legislature Itself and that it was the restraints of this paramount written law that could only save them from the fears of absolutism and autocracy which are ingrained in human nature itself.

• • So, in 1928 long before the dawn of independence in India, the Motilal Nehru Committee asserted that “Our first care could be to have our fundamental rights guaranteed in a manner which will not allow withdrawal under any circumstances.”

Judicial review v/s Judicial supremacy

• • Judicial review is a necessary concomitant of ‘fundamental rights, for, it is meaningless to enshrine individual rights in a written Constitution as ‘fundamental rights’ if they are not enforceable, in Courts of law, against any organ of the State, legislative or executive.

• • At the same time, it must be pointed out that since the inauguration of the Constitution, various provisions have been inserted into the Constitution by amendments, which have taken out considerable areas from the pale of Judicial review, e.g., by inserting Arts. 31A – 31C; and by 1995 as many as 284 Acts,-Central and State,-have been shielded from judicial review on the grounds of contravention of the Fundamental Rights, by enumerating them under the 9th Schedule which relates to Art. 31B.

• • An Independent judiciary, having the power of ‘Judicial review’, is another prominent feature of our Constitution. On the other hand, we have avoided the other-extreme, namely, that of ‘judicial supremacy’, which may be a logical outcome of an over-emphasis on judicial review, as the American experience demonstrates.

• • An absolute balance of powers between the diferent organs of government is an impracticable thing and, in practice, the final say must belong to one of them. This is why the rigid scheme of Separation of Powers and the checks and balances between the organs in the Constitution of the United States has failed in its actual working, and the Judiciary has assumed supremacy under its powers of interpretation of the Constitution to such an extent as to deserve the epithet of the ‘safety valve’ or the ‘balance-wheel’ of the Constitution.

• • It has the power to invalidate a law duly passed by the Legislature not on1y on the ground that it transgresses the legislative powers vested in it by the Constitution or by the prohibitions contained in the Bill of Rights but also on the ground that It Is opposed to some general principles said to underlie vague expressions such as due process, the contents of which not being explicitly laid down in the Constitution, are definable only by the Supreme Court. The American Judiciary thus sits over the wisdom of any legislative policy as if it were a third Chamber or super-Chamber of the Legislature.

• • Under the English Constitution, on the other hand, Parliament is supreme and “can do everything that is not naturally impossible” and the Courts cannot nullify any Act of Parliament on any ground whatsoever.

• • The Indian Constitution wonderfully adopts the via media between the American system of judicial supremacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary with the power of declaring a law as unconstitutional if it is beyond the competence of the Legislature according to the distribution of powers provided by the Constitution, or if It is In contravention of the fundamental rights guaranteed by the Constitution or of any other mandatory provision of the Constitution but at the same time, depriving the Judiciary of any power of ‘judicial review’ of the wisdom of the legislative policy.

• • Our Constitution thus places the supremacy at the hands of the Legislature as much as is possible within the bounds of a written Constitution.

Fundamental Rights subject to reasonable regulation by Legislature

• • The balancing between the supremacy of the Constitution and sovereignty of the Legislature is illustrated by the novel declaration of Fundamental Rights which our Constitution embodies.

• • The idea of incorporating into the Constitution a ‘Bill of Rights has been taken from the Constitution of the United States. But the guarantee of individual rights in our Constitution has been very carefully balanced with the need for the security of the State itself.

• • American experience demonstrates that a written guarantee of fundamental rights has a tendency to engender an atomistic view towards society and the State which may at times prove to be dangerous to the common welfare. Of course, America has been saved from the dangers of such a situation by reason of her Judiciary propounding the ‘doctrine of ‘Police Powers’ under which the Legislature is supposed to be competent to interfere with individual rights wherever they constitute a ‘dear danger’ to the safety of the State and other collective Interests.

• • Instead of leaving the matter to the off-chance of judicial protection in particular cases, the Indian Constnunon makes each of the fundamental rights subject to legislative control under the terms of the Constitution itself, apart from those exceptional cases where the interests of national security, integrity or welfare should exclude the appllcation of fundamental rights altogether. Example, [Arts. 31A-31C].

The adoption of universal adult suffrage

• • The adoption of universal adult suffrage (Art. 326], without any qualification either of sex, property, taxation is a ‘bold experiment’ in India, having regard to the vast extent or the country and Its population, with over-whelming illiteracy.

• • The suffrage in India, it should be noted, is wider than that in England or the United States.

• • The concept of popular sovereignty, which underlies the declaration in the Preamble that the Constitution is adopted and given by the ‘people of India’ unto themselves, would Indeed have been hollow unless the franchise-the only effective medium of popular sovereignty in a modern democracy-were extended to the entire adult population which was capable of exercising the right and an independent electoral machinery (under the control of the Election Commission) was set up to ensure the free exercise of its rights.

• • That, notwithstanding the outstanding difficulties, this bold experiment has been crowned with success will be evident from some of the figures. The orderliness with which eleven General Elections have been conducted speaks eloquently of the political attainment of the masses, though illiterate, of this vast sub-continent.

• • No less creditable for the framers of the Constitution is the abolition of communal represeruation, which In Its trail had brought in the bloody and lamentable partition of India. In the new Constitution there was no reservation of seats except for the Scheduled Castes and Scheduled Tribes and for the Anglo-Indians,-and that only for a temporary period.

Parliamentary Democracy with an elected President as Head

• • It has been stated at the outset, that the form of government introduced by our Constitution both at the Union and the States is the Parliamentary Government of the British type. A primary reason for the choice of this system of government Was that the people had a long experience of this system under the Government of India Acts, though the British were very slow in importing its features to the fullest length.

• • The makers of our Constitution rejected the Presidential system of government, as it obtains in America, on the ground that under that system the Executive and the Legtslauires are separate from and independent of each other which is likely to cause conflicts between them, which our infant democracy could ill afford to risk.

• • But though the British model of Parliamentary or Cabinet form of government was adopted, a hereditary monarch or ruler at the head could not be installed, because India had declared herself a ‘Republic’ instead of a monarch, therefore, an elected President was to be at the head of the Parliamentary system. In introducing this amalgam the makers of our Constitution followed the Irish precedent.

• • As in the Constitution of Eire, the Indian Constitution superimposes an elected President upon the Parliamentary system at the Head. But though an elected President is the executive head of the Union he is to act on the advice of his ministers, although whether he so acts according to the advice of his ministers is not questionable in the courts and there is no mode, short of impeachment, to remove the President if he acts contrary to the Constitution.

• • But our Constitution is not an exact replica of the Irish model either. The Constitution of Eire lays down that the constitutional powers of the President can only be exercised by him on the advice of Ministers, except those which are left to his discretion by the Constitution itself.

• • Thus, the Irish President has absolute discretion to refuse the dissolution of the Legislature to a defeated Prime Minister, contrary to the English practice and convention. But in the Indian Constitution there Is no provision authorizing the President to act at his discretion on any matter.

• • On the other hand, by amending Art. 74(1), the 42nd Amendment Act has explicitly codified the proposition which the Supreme Court had already laid down in several decisions, that the President “shall, In the exercise of his functions, act in accordance with such advice,” i:e., the advice tendered by the Council of Ministers.

• • The Janata Government has preferred not to disturb this contribution of the 42nd Amendment., except to empower the President by the 44th Amendment, 1978, to refer a matter back to the Council of Ministers, for reconsideration.

Integration of Indian States

• • At the time of the constitutional reforms leading to the Government of India Act, 1935 the geographical entity known as India was divided into two parts-British India and the Indian States. While states. under the British India comprised the nine Governors’ Provinces of the British Crown and some other areas administered by the Government of India itself, the Indian States comprised some 600 States which were mostly under the personal rule of the Rulers or proprietors.

• • The common feature that distinguished these States from British India was that the Indian States had not been annexed by the British Crown. So, while British India was under the direct rule of the Crown thrugh its representatives and according to the statutes of Parliament and enactments of the Indian legis1atures, the Indian States were allowed to remain under the personal rule of their Chiefs and Princes, under the ‘suzerainty’ of the Crown, which was assumed over the entire territory of India when the Crown look over authority from the East India Company in 1858.

• • While the States were responsible for their own internal administration, the Crown accepted responsibility for their external relations and defence. The Indian States had no international life, and for extemal purposes, they were practically in the same position as British India.

• • As regards internal affairs, the policy of the British Crown was normally one of non-interference with the monarchical rule of the Rulers, but the Crown Interfered in cases of misrule and mal-administration, as well as for giving effect to its international commitments. So, even in the internal sphere, the Indian States had no legal right against non-interference.

• • The Government of India Act, 1935 envisaged a federal structure for the whole of India, in which the Provinces accession to the Federation was compulsory or automatic, the case of an Indian State was voluntary and depended upon the option of the Ruler of the State.

• • Also the authority of the Federation over the Provinces (executive as well as legislative) extended over the whole of the federal sphere chalked out by the Act,-in the case of the Indian States, the authority of the Federation could be limited by the Instrument of Accession and all residuary powers belonged to the State.

• • It is needless to elaborate on the details of the plan of 1935, as has been stated earlier, the accession of the Indian States to the proposed Federation never came true, and this Part of that Act was finally abandoned in 1939 when World War II broke out.

• • When the Indian Independence Act, of 1947, was passed, paramountcy lapsed and the Indian States regained the position which they had prior to the assumption of suzerainty by the Crown, most of the States soon realized that it was no longer possible for them to maintain their existence independent of and separate from the rest of the country, and that It was in their own interests necessary to accede to either of the two Dominions of India and Pakistan.

• • Of the States situated within the geographical boundaries of the Dominion of India, all (numbering 552) save Hyderabad, Kashmir, Bahawalpur, Junagadh, and the N.W.F. States had acceded to the Dominion of India by the 15th August, 1947, i.e., before the ‘appointed day’ itself.

The problem of the Government of India as regards the States after the accession was two-fold

• • Shaping the Indian States into sizeable or viable administrative units, and fitting them into the constitutional structure of India.

• • The first objective was sought to be achieved by a three-fold process of integration (known as the ‘Patel scheme’ after Sardar Vallabhbhai Patel, Minister In-charge of Home Affairs

• • 216 States were merged into the respective Provinces, geographically contiguous to them. These merged States were included in the territories of the States in Part B of the First Schedule of the Constitution. The process of merger started with the merger of Orissa and Chhattisgarh States with the then Province of Orissa on January 1, 1948, and the last instance was the merger of Cooch-Behar with the State of West Bengal in January 1950.

• • 61 States were converted into Centrally administered areas and included in Part C of the First Schedule of the Constitution. This form of integration was resorted to in those cases in which, for administrative, strategic, or other special reasons, Central control was considered necessary.

• • The third form of integration was the consolidation of groups of States into new viable units, known as the Union of States. The first Union formed was the Saurashtra Union consolidating the Kathiawar States and many other States (February 15, 1948), and the last one was the Union of Travancore-Cochin, formed in 1949. As many as 275 States were thus integrated into 5 Unions – Madhya Bharat, Patia1a and East Punjab States Union, Rajasthan, Saurashtra and Travancore-Cochin, These were included in the States in Part B of the First Schedule.

• • The other 3 States included in Part B were – Hyderabad, jammu and Kashmir and Mysore. The cases of Hyderabad and Jammu and Kashmir were peculiar. Jammu and Kashmir acceded to India on October 26, 1947, and so it was included as a State in Part B, but the Government of India agreed to take the accession subject to confirmation by the people of the State, and a Constituent Assembly subsequently confirmed it, in November 1956. Hyderabad did not formally accede to India, but the Nizam issued a Proclamation recognising the necessity of entering into a constitutional relationship with the Union of India and accepting the Constitution of India subject to ratification by the Constituent Assembly of that State, and the Constituent Assembly of that State ratified this. As a result, Hyderabad was included as a State in Part B of the First Schedule of the Constitution.

• • At the time of their accession to the Dominion of India in 1947, the States had acceded only on three subjects, viz. Defence, Foreign Affairs and Communications.

• • With the formation of the Unions and under the influence of political events, the Rulers found It beneficial to have a closer connection with the Union of India and all the Rajpramukhs of the Unions as well as the Maharaja of Mysore, signed revised Instruments of Accession by which all these States acceded to the Dominion of India in respect of all matters included in the Union and Concurrent Legislative Lists, except only those relating to taxation.

• • Thus, the States in Part B was brought at par with the States in Part A, subject only to the differences embodied in Art. 238 and the supervisory powers of the Centre for the transitional period of 10 years [Art. 371].

• • The process of integration culminated in the Constitution (7th Amendment) Act, 1956, which abolished the Part B States as a class and included all the States in Part A and B in one list. The special provisions in the Constitution relating to the Part B States were, consequently, omitted. The Indian States thus lost their identity and became part of one uniform political organization embodied in the Constitution of India.

Summary

        Schedule 1: Name and extent of State and UT.

        Schedule 2:  Emoluments, allowances, privileges of constitutional authorities.

        Schedule 3: Forms of oaths for constitutional authorities

        Schedule 4: Seat allocation in Rajya Sabha

        Schedule 5: Administration and control of scheduled areas and tribes.

        Schedule 6: Administration of tribal areas of Assam, Meghalaya, Tripura, and Mizoram.

        Schedule 7: Division of powers: Union, state, concurrent list.

        Schedule 8: Languages recognized by the constitution.

        Schedule 9: Law within this schedule is protected from judicial review.

        Schedule 10: Anti defection

        Schedule 11: Rural local government

        Schedule 12: Urban local government