Salient Features of the Constitution  

Introduction

The Indian Constitution is unique for many outstanding features. Though the Indian Constitution is borrowed from all the known constitutions of the world, and most of its provisions are substantially taken from others. But it has several salient features that distinguish it from other constitutions of the world. After the adoption of the Constitution of India in 1949, a number of original features of the Constitution have been substantially changed through several amendments, particularly the 7th, 42nd, 44th, 73rd, 74th and 97th Amendments. In fact, the 42nd Amendment Act of 1976 is known as ‘Mini Constitution ‘ due to the important and large number of changes in various parts of the Constitution.

The salient features of the Constitution are discussed in detail one by one in the below.

Drawn From Different Sources

The Constitution of India has borrowed most of its provisions from various Constitutions of the countries as well as from the Government of India Act of 1935. The structural part of the Constitution is to a large extent and derived from the Government of India Act of 1935. The political part of the Constitution is derived from the British Constitution. The philosophical part of the Constitution is derived from the Irish and American Constitution respectively. The other provisions of the Constitution have been drawn from various countries’ Constitutions such as Canada, France, Germany, USSR, Japan, South Africa, and so on.

The Federal Scheme, Judiciary, Governors, emergency powers, the Public Service Commissions and most of the administration details are drawn from the Government of India Act, 1935.

After the making of the Constitution of India, Dr. B R Ambedkar proudly claimed that the Constitution of India had been prepared after ‘ransacking all the known constitutions of the world’.

Longest known Constitution

The Indian Constitution is the longest written constitution of any country. It is a very lengthy and most detailed constitutional document ever produced in the world. The Indian Constitution, originally, had 395 Articles (divided into 22 parts) and 8 Schedules. Now, with 104 amendments till 25 January 2020, it has 470 Articles (divided into 25 parts) and 12 Schedules.

Several reasons have contributed to the bulk size of our Constitution. These are:

1. To avoid all future defects and loopholes, the incorporation of good provisions of other countries.
2. The Constitution of the United States of America deals only with the Federal Government and leaves the states to draw their own constitutions while the Indian Constitution deals with both Central and States with the same fullness and precision except Jammu and Kashmir. It gives special provisions of some Indian States such as Nagaland, Sikkim, Karnataka etc.
3. Detailed administrative provisions are included in the Indian Constitution.
4. The Constitution of India has incorporated Fundamental Rights, Fundamental Duties and Directive Principles of State Policy.
5. The Indian Constitution provided detailed provisions regarding the organization of the Judiciary, the services, elections and other provisions.
6. The codification of detailed relations between central and states to prevent future conflicts.
7. The influence of the Government of India Act of 1935 on the Indian Constitution.
8. The Indian Constitution contains not only the fundamental principles of governance but also detailed administrative provisions. Furthermore, it contains provisions for those problems facing the country, such as the problem of Scheduled Castes and Scheduled Tribes, backward classes, official language etc.

Combination of Flexible and Rigid

Constitutions may be classified rigid and flexible on the grounds of the amendment procedure being difficult or easy. The American Constitution is an example of a rigid constitution because of their difficult amendments processes. In the flexible constitution, no special procedure is required for amendment in the constitution. It is passed in a simple manner as the ordinary laws are made, as, for example, the British Constitution.

 The Indian Constitution is neither rigid nor flexible. It is a combination of both. Some provisions can be amended like ordinary legislation by a simple majority of both Houses of Parliament. Note, these amendments do not come under article 368.

While other provisions can be amended under article 368. Article 368 provides two types of amendments.

1.  Some provisions can be amended by a special majority in the Parliament, i.e., it requires two-third majority of the members of each House present and voting, and a majority (more than 50-percent), of the total membership of each House.
2. Some other provisions can be amended by a special majority of both Houses and with the ratification by half of the total States.

Federal System with Unitary Bias

The constitution can also be divided between federal and unitary. In a federal constitution, powers are divided between the federal government and the government of the unit – both exercising power in their respective areas in their own right and independently. While in a unitary constitution, all powers are vested in the Central Government to which the authorities in the units are subordinate and function as the agent of the Central Government.

The constitution of India is a combination of the federal system with unitary bias. 

The Indian Constitution contains all main features of a federation such as division of powers, two governments (Centre and State), written constitution, rigidity of constitution, supremacy of constitution, independent Judiciary, bicameralism and so many. However, it also contains all usual features of non-federal or unitary features such as single constitution, single citizenship, strong centre, flexibility of constitution, integrated judiciary, appointment of state governor by the Centre, all India services, emergency provisions and so on.

The term ‘federal ‘ or ‘federation ‘ is not used in the Constitution of India. However, article 1 described India as a ‘ Union of States’, which means that the Indian federation is not the result of agreement by the states, and no state has the right to secede from it.

Hence, the Indian Constitution has been variously described as quasi-federal, federal with a strong unitary, federal in structure but unitary in spirit, federal in a normal situation but with possibilities of being converted into a purely unitary one during emergency.

Parliamentary System of Government

The Constitution of India provides a Parliamentary System of Government which is adopted from the British Parliamentary System of Government rather than the American Presidential System of Government. The presidential system is based on the doctrine of separation of powers between the legislative and executive organs, while the Parliamentary system is based on the principle of co-ordinate and cooperation between the legislative and executive organs. The Indian Constitution establishes the Parliamentary system not only in the Centre but also in the States.

The main features of the parliamentary system in India are:

1. Majority party rule.
2. Membership of the minister in the legislature.
3. The Prime Minister or Chief Minister is a head of the Centre or State.
4. Dissolution of the lower House (Lok Sabha).
5. Ministers have collective responsibility to the legislature.

However, the Indian Parliamentary System is adopted from the British Parliamentary System, but there are some fundamental differences between them. For example, our constitution is largely federal while the U.K. constitution is still largely unitary. Our constitution is a written constitution while the U.K. constitution is unwritten. The Indian Parliamentary is not a sovereign body like the British Parliament. The British state has a hereditary head (monarchy) while the Indian state has an elected head (republic).

Synthesis of Parliamentary Sovereignty and Judicial Supremacy

In the Indian constitution, sovereignty of Parliament concepts come from the British Parliament while the principle of judicial supremacy comes from the American Supreme Court. In the Indian Constitution, sovereignty of Parliament and Judicial Supremacy is a middle and compromised version of the British sovereignty of Parliament and American judicial supremacy.

India is governed by the rule of law and judicial review of administrative action is an essential part of the rule of law. Hence, Indian courts can determine not only the constitutionality of the law but also the procedural part of administrative action.

But, the powers and functions of every organ are defined and delimited by the constitution when the constitution was written. Hence, both Parliament and the Supreme Court are supreme in their respective areas. The Supreme Court may declare a law passed by parliament unconstitutional through its power of judicial review. On the other hand, the Parliament can amend most parts of the Constitution through its constituent power.

Independent and Integrated Judiciary

The Indian Constitution establishes a judicial system that is independent, with powers of judicial review and also integrated. The Supreme Court stands at the top of the integrated judicial system in the country. After the Supreme Court, there are High Courts at the state level. In the state, under high courts, there is a hierarchy of subordinate courts, that is district courts and other lower courts. In India, the entire judiciary is one hierarchy of courts. The jurisdiction of courts is over all laws of the Union, State, Civil, Criminal or Constitutional. While in the USA, the federal laws are enforced by the federal Judiciary and the state laws are enforced by the state judiciary.  In India, the word of the Supreme Court is the final law of the land. The Supreme Court also functions as the arbiter of any disputes in regard to jurisdiction and the distribution of powers between the Union and States or between the States.

Fundamental Rights

The Indian Constitution has so many fundamental rights such as the Right to Equality, Right to Freedom, right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. The Fundamental Rights are meant for promoting the idea of political democracy. The state cannot make laws which take away any fundamental rights of the citizens. If any state makes such laws, then courts can declare such a law unconstitutional. However, the Fundamental Rights are not absolute and subject to certain restrictions. Fundamental Rights can also be suspended during the operation of a National Emergency except the rights guaranteed by article 20 and 21.

Fundamental Duties

 Initially, the Indian Constitution had not provided for the fundamental duties of the citizens. During the period of internal emergency (1975-1977), the 42nd Constitutional Amendment Act of 1976 added the Fundamental Duties of the citizens in the Constitution of India. This amendment is recommended by the Swaran Singh Committee. At present, the Indian Constitution has 11 Fundamental Duties for the citizens of India. Ten of these fundamental duties were added in the Indian Constitution by the 42nd Constitutional Amendment Act of 1976 and the 11th duty was added by the 86th Constitutional Amendment Act of 2002. These fundamental duties continue to remind the citizens that they have to be quite conscious of duties they owe to their country, their society, and to their fellow citizens.

Directive Principles of State Policy

The Directive Principles is a unique feature of our Constitution. These are enumerated in Part 4 of the Constitution. The directive principles are non-justiciable in nature, unlike the fundamental rights, that is, they are not enforceable by the courts for their violation. However, the Indian Constitution itself declares that ‘these principles are fundamental in the governance of the country, and it shall be the duty of the state to apply these principles in making laws’. The Directive Principles of State Policy are inspired by the Irish. 

Secular State

The Constitution of India makes India a secular state. Hence, any particular religion is not the official religion of the Indian state. The term ‘secular’ was first added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976. However, freedom of religion is not absolute, and it can be regulated in the interest of the public. The western concept of secularism is a complete separation between the religion (church) and the state (politics). This concept of secularism is not fit for Indian society because of the fact that India society is multireligious. Hence, the Indian Constitution embraced the positive concept of secularism, I.e., giving equal respect to all religions or protecting all religions equally.

Citizenship

The Constitution of India provides only single citizenship, that is, Indian citizenship. All citizens of India, whether they were born or reside in any state of India, enjoy the same political and civil rights of citizenship all over the country. No discrimination is made between them except in a few cases like tribal areas, special protected areas and so on. On the other hand, in countries like the USA, each person is not only a citizen of the USA but also a citizen of the particular state to which he or she belongs.

Universal Adult Franchise

The Constitution of India adopts a universal adult franchise and gives the rights to vote to all citizens above 18 years of age without discrimination of caste, religion, sex, literacy, wealth and so on. The 61st Constitutional Amendment Act of 1988 reduced the voting age from 21 years to 18 years. However, it makes reservation of seats for Scheduled Tribes and Scheduled Castes to promote adequate representation.

Independent Bodies

The Indian Constitution establishes certain independent bodies. These are Election Commission, Comptroller and Auditor General (CAG) of India, Union Public Service Commission, State Public Service Commission and so on.

 The Indian Constitution ensures the independence of these bodies through various provisions like fixed service conditions, security of tenure, and so on. These independent bodies are very important for vibrant democracy.

Emergency Provisions

The Indian Constitution contains emergency provisions for dealing with any extraordinary situations. These emergency provisions are effectively enforced by the President of India.

These provisions ensure safeguards for the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution. There are three types of emergency provisions mentioned in the Constitution of India. These are:

1. The national emergency is enforced on the ground of war or external aggression or armed rebellion. It can be enforced by article 352.
2. The state emergency (President’s Rule) is enforced on the ground of failure of Constitutional machinery in the state or failure to comply with the directions of the Centre. It can be enforced through article 356.
3. The financial emergency is enforced on the ground of a threat to the financial stability or credit of India. It can be enforced through article 360.

During an emergency time, the Central Government becomes all-powerful and the states go into total control of the centre.

Three-tier Government

Like other federal constitutions, initially the constitution of India also provided dual-tier government. Later, the 73rd and 74th Constitutional Amendment Acts of 1992 added a third-tier of government (i.e., local) which is not found in any other Constitution of the world. The 73rd Amendment Act gave constitutional recognition to the panchayats (rural local governments) and the 74th Constitutional Amendment Act gave constitutional recognition to the municipalities (urban local governments).

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