Const India

8/8/2019 Const India

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Prof. Shivashankar



Our Constitution is written, lengthy anddetailed.

Written constitution is based on written laws

du

ly passed by a representative bodyelected for this very purpose. In other words, a written constitution is an

enacted constitution. An unwritten constitution, on the other hand,

is an evolved constitution. It is primarily based on unwritten

conventions, traditions and practices.



The Constitution of the U.S.A. is anotherexample of a written constitution and that of England of an unwritten one.

The Constit

ution of India is an elaboratedocument and is the most voluminous

Constitution in the world.Our Constitution originally consisted of 395

Articles and eight Schedules.

During the last fifty-three years of itsoperation, seventy-six Amendments havebeen made to the Constitution.



T wo new Schedules have also been added, resulting in

a f urther increase in its size and volume.

An important reason for the extraordinary volume of

the Constitu

tion is that it contains detailed provisionsregarding numerous aspects of governance.

This was done to minimize conf usion and ambiguity in

the interpretation of the Constitution, another reason

for its unusual lengthy is the incorporation of the good

points of various constitutions of the world. The vastness of our country and its peculiar problems

has also added to the bulk of the Constitution.



For example, the Indian Constitution envisages laws for

the governance of the States too.

Detailed provisions regarding the working of the Union

Government and the State Governments have beengiven with a view to avoiding any constitutional

problem which the newly-born Democratic Republic

might experience in the working of the Constitution.



A flexible constitution is that which can beamended like an ordinary law of the country, i.e.by a simple majority of Parliament.

On the other hand, a rigid constitution is the one

which prescribes a difficult procedure for its ownamendment.

The Constitution of the U.S.A. is the best exampleof rigid constitution because it can be amendedonly if a proposal for constitutional amendment is

passed by a two-third majority in each House of the Congress (the US Parliament) and ratified byat least three-fourths of the federating states.



The Constitution of Great Britain, on the other hand, is highlyflexible.

It can be amended by a simple majority of its Parliament,much like the ordinary laws of the country.

The Indian Constitution is neither very flexible nor very

rigid. Some provisions of the Constitution can be amended by a

simple majority of Parliament, like ordinary laws of the land while most of the provisions can only be amended by a two-thirds majority of Parliament

For very important provisions of the Constitution, such as the

manner of election of the President and the extent of thelegislative powers of the Union and the States, anamendment passed by a two-thirds majority of Parliamentshould also be ratified by at least one-half of the Statelegislatures.



The Indian Constitution thus combines theflexibility of the British Constitution and therigidity of the American Constitution.

Jawaharlal Nehru

, while ju

stifying this natu

reof the Constitution, said, "0ur Constitution is to be as solid and

permanent as we can make it, yet there is no permanence in a constitution. There should

be a certain amount of flexibility. If you makeanything rigid and permanent, you stop the

nation·s growth, the growth of a living vital organic people."



Our Constitution declares India a Union of States(federation).

It prescribes dual set of governments-the UnionGovernment and the State Governments.The subjects of administration have also been classified into three lists-the

Union List, the State List and the Concurrent List. Whereassubjects of national importance like currency, defense,railways, post and telegraph, foreign affairs, citizenship,survey and census have been assigned to the UnionGovernment and placed under the Union List, subjects of local importance like agriculture, law and order, health and

entertainment have been assigned to the States and form apart of the State List.

Both the Union Government and the State Governmentsoperate within the spheres of their authority.



The Union Parliament and the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrentsubjects.

These subjects are of common importance such as marriageand divorce, adoption, succession, transfer of property,

preventive detention, education, civil and criminal law, etc. However, if there is a conflict between a Union law and a law

passed by one or many State Legislatures, the law made bythe Union Parliament would prevail over the State law.TheIndian Constitution possesses other features of a federationtoo, for example, supremacy of the constitution.

This means that the Union and the State Governments bothoperate within the limits set by the Constitution. Both thegovernments derive authority from the Constitution itself.



Similarly, in all federal countries, the authority of the Court isa well established fact.

This means that in case of a dispute between the UnionGovernment and State Governments or between two or

more State Governments, the verdict of the Court will befinal.

Not only this, the Supreme Court is given the responsibilityof interpreting the Constitution in case of dispute orconf usion.

The Supreme Court of India is the guardian of the

Constitution and f ulfils its role as a Federal Court too. The Indian Constitution, though federal in form, has a strongunitary bias.The Central Government possesses extensivepowers compared to the State Governments.

The exercise of these powers by the Centre gives the

Constitu

tion the strength of au

nitary government.



The Union Government can supersede the authorityof the States both in the normal and abnormal times.

The President of India can declare three differenttypes of emergency.

During the operation of an emergency, the powers of the StateGovernments are greatly curtailed and the Union Governmentbecomes all in all.

Even in normal times, the Union Parliament can legislate upon asubject given in the State List, if the Rajya Sabha passes aresolution by a two-thirds vote that such legislation is necessaryin the national interest.

Moreover, the Indian Constitution,unlike the US Constitution,does not provide for double citizenship, division of publicservices or of the judiciary. Similarly, the States in India do notenjoy the right to secede from the Union nor do they enjoyequality of representation in the Council of States (RajyaSabha).



Another unitary feature of our

Constitution is that it gives Union

Parliament the power to alter theboundaries of the existing States or to

carve out new States out of the existing

ones.

It is on account of these features that theIndian Constitution is said to be federal

in form but unitary in spirit.



The Constitution of India adopts Parliamentary system of

government at the Centre and in the States.

The executive power is wielded by the Council of Ministers which

is collectively responsible to the legislature.

The Ministers continue in office so long as they enjoy theconfidence of a majority of Members in the legislature. The

moment they lose this confidence, a vote of no-confidence is

passed against them and they have to resign forthwith.

The responsibility of the executive to the legislature is also

ensured by the right of the Members of the legislature to put

questions to the Ministers. The Members may table adjournmentmotions and call attention motions against the policies pursued

by the Government.

The Ministers are duty-bound to answer all such questions and

satisfy the Members of the legislature.



Certain rights are considered basic orf undamental as they provide suitable conditionsfor the material and moral uplift of the people.T

he Indian Constitu

tion gu

arantees a nu

mber of such rights to the citizens of India. TheFundamental Rights of India conferred by theConstitution are: The Right to Equality;

The Right to Freedom; The Right against Exploitation;

The Right to Freedom of Religion;

Cultural and Educational Rights; and

The Right to Constitutional Remedies.



The Right to Property was deleted from

the list of Fundamental Rights by the

Forty-fo

urth Constit

ution Amendment Act, 1978.

The f undamental rights as envisaged in

the Constitution of India are justiciable.



The Directive Principles of State Policy constitute anotherdistinctive feature of our Constitution, These Principlesembody certain ideals and objectives which should be keptin mind by the Union and State Governments while makinglaws and implementing policies.

The implementation of these directives was not madecompulsory due to the paucity of resources.

The framers of the Constitution expected that as and whenthe f uture Governments would mobilise resources, they

would do their best to implement these directives. Equitable distribution of wealth, employment for all,

protection of health, compulsory education for children upto the age of fourteen and the establishment of villagepanchayats are some such principles.

The Directive Principles of State Policy are non-justifiable.



No legal remedy can be sought in a court of lawft the Government fails to follow or implementany of these principles.

In other words, the Directive Principles are non-

justifiable rights of the citizen. However, these principles are considered

important in the governance of the country. Itbecomes a moral duty of every government tofollow them and realise the purpose behind

them. Several amendments to the Constitution, together

with some judgments of the Supreme Court havepaved the way for the implementation of theDirective Principles.



Our Constitution has taken special care toestablish an independent and impartial judiciary.

The judges of the Supreme Court and the StateHigh Courts have been provided security of

service. Once appointed, their salaries and allowances

cannot be altered to their disadvantage by theGovernment during the course of their tenure.Nor can they be dismissed before the age of

their retirement except in case of provenmisconduct supported by a resolution of Parliament passed by a two-thirds majority.



Security of service of judges is in keeping withthe dignity and prestige of the highest judicialorgans of the country.This provision has beenmade in the Constitution to keep the judges

independent and immune from the control andinfluence of the Executive.

The judges can exercise their discretion in thedispensation of justice even if their decisions goagainst the Government.The Supreme Court and

the State High Courts are also the guardians of the rights and liberties of the citizens and protectthem against arbitrary action on the part of allgovernment agencies.



In a country like India, with diverse culturaltraditions and languages, it is essential to declareone language as the national language, symbolic

of theu

nity of the different regions of the cou

ntry. The Constitution declares Hindi in Devanagari

script as the official language of the country. Besides, each State is authorised to adopt a

regional language for all or some of its official

purposes. English has also been allowed to be used along

with other languages for official purposes.



The Constitution provides for Universal Adult Franchise. The citizens of India who are 18 years of age and above have

been granted the right to vote irrespective of anyqualification pertaining to education, possession of propertyor payment of income tax.

The adoption of Universal Adult Franchise was indeed a very daring step taken by the Constituent Assembly in viewof the fact that large sections of our people are illiterate.

The manner and the orderliness, with which Indian masseshave exercised their right to vote during ten generalelections and many State Legislative Assembly elections,

speak eloquently of the political maturity of our people. The Constitution has replaced the system of communal

representation (introduced by the British in 1909) by that of joint electorates. The country is divided into territorialconstituencies.



From each constituency, members of differentcommunities jointly elect a common candidate.

The system of joint electorates promotescommunal harmony and goodwill and

discourages communal politics. To bring the Scheduled Castes and Tribes at par

with the other communities of the country, someseats have been reserved for them in the UnionParliament, State Legislatures and local bodies.

There are reserved parliamentary and assemblyconstituencies from where only the members of the Scheduled Castes or Tribes can contestelections.



The Preamble to the Constitution, as modified by theForty-second Amendment Act, 1976 and the DirectivePrinciples of State Policy aim at the establishment of a Welfare State in India.

Keeping in view the inherent spirit of theConstitution, the successive governments at theCentre have been pursuing a policy of democraticsocialism.

Nationalization of banks and general insurance,fixation of ceiling on urban and rural lands and

abolition of privy purses of the rulers of the erstwhilenative States, implementation of various povertyalleviation programs are some of the measures whichhave been taken to remove gross inequalities of wealth and to usher in an era of social and economic

equ

ality.

Const India

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