Monday, 26 August 2019

Salient Features of the Constitution (Part I) | KAS | UPSC | SSC | RRB



INTRODUCTION

The Indian Constitution is unique in its contents and spirit. Though
borrowed from almost every constitution of the world, the constitution
of India has several salient features that distinguish it from the constitutions
of other countries.
It should be noted at the outset that a number of original features of the
Constitution (as adopted in 1949) have undergone a substantial change, on
account of several amendments, particularly 7th, 42nd, 44th, 73rd, 74th and
97th Amendments. In fact, the 42nd Amendment Act (1976) is known as
‘Mini-Constitution’ due to the important and large number of changes made
by it in various parts of the Constitution. However, in the Kesavananda
Bharati case1 (1973), the Supreme Court ruled that the constituent power of
Parliament under Article 368 does not enable it to alter the ‘basic structure’
of the Constitution.

SALIENT FEATURES OF THE CONSTITUTION

The salient features of the Constitution, as it stands today, are as follows:

1. Lengthiest Written Constitution

Constitutions are classified into written, like the American Constitution, or
unwritten, like the British Constitution. The Constitution of India is the
lengthiest of all the written constitutions of the world. It is a very
comprehensive, elaborate and detailed document.
Originally (1949), the Constitution contained a Preamble, 395 Articles
(divided into 22 Parts) and 8 Schedules. Presently (2016), it consists of a
Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules2. The
various amendments carried out since 1951 have deleted about 20 Articles
and one Part (VII) and added about 90 Articles, four Parts (IVA, IXA, IXB
and XIVA) and four Schedules (9, 10, 11 and 12). No other Constitution in
the world has so many Articles and Schedules3.
Four factors have contributed to the elephantine size of our Constitution.
They are:
(a) Geographical factors, that is, the vastness of the country and its diversity.
(b) Historical factors, e.g., the influence of the Government of India Act of
1935, which was bulky.
(c) Single Constitution for both the Centre and the states except Jammu and
Kashmir4.
(d) Dominance of legal luminaries in the Constituent Assembly.
The Constitution contains not only the fundamental principles of
governance but also detailed administrative provisions. Further, those matters
which in other modern democratic countries have been left to the ordinary
legislation or established political conventions have also been included in the
constitutional document itself in India.

2. Drawn From Various Sources

The Constitution of India has borrowed most of its provisions from the
constitutions of various other countries as well as from the Government of
India Act5 of 1935. Dr B R Ambedkar proudly acclaimed that the
Constitution of India has been framed after ‘ransacking all the known
Constitutions of the World6’.
The structural part of the Constitution is, to a large extent, derived from the
Government of India Act of 1935. The philosophical part of the Constitution
(the Fundamental Rights and the Directive Principles of State Policy) derive
their inspiration from the American and Irish Constitutions respectively. The
political part of the Constitution (the principle of Cabinet Government and
the relations between the executive and the legislature) have been largely
drawn from the British Constitution7.
The other provisions of the Constitution have been drawn from the
constitutions of Canada, Australia, Germany, USSR (now Russia), France,
South Africa, Japan, and so on8.
The most profound influence and material source of the Constitution is the
Government of India Act, 1935. The Federal Scheme, Judiciary, Governors,
emergency powers, the Public Service Commissions and most of the
administrative details are drawn from this Act. More than half of the
provisions of Constitution are identical to or bear a close resemblance to the
Act of 19359.

3. Blend of Rigidity and Flexibility

Constitutions are also classified into rigid and flexible. A rigid Constitution is
one that requires a special procedure for its amendment, as for example, the
American Constitution. A flexible constitution, on the other hand, is one that
can be amended in the same manner as the ordinary laws are made, as for
example, the British Constitution.
The Constitution of India is neither rigid nor flexible but a synthesis of
both. Article 368 provides for two types of amendments:
(a) Some provisions can be amended by a special majority of the Parliament,
i.e., a two-third majority of the members of each House present and
voting, and a majority (that is, more than 50 per cent), of the total
membership of each House.
(b) Some other provisions can be amended by a special majority of the
Parliament and with the ratification by half of the total states.
At the same time, some provisions of the Constitution can be amended by
a simple majority of the Parliament in the manner of ordinary legislative
process. Notably, these amendments do not come under Article 368.

4. Federal System with Unitary Bias

The Constitution of India establishes a federal system of government. It
contains all the usual features of a federation, viz., two government, division
of powers, written Constitution, supermacy of Constitution, rigidity of
Constitution, independent judiciary and bicameralism.
However, the Indian Constitution also contains a large number of unitary
or non-federal features, viz., a strong Centre, single Constitution, single
citizenship, flexibility of Constitution, integrated judiciary, appointment of
state governor by the Centre, all-India services, emergency provisions, and so
on.
Moreover, the term ‘Federation’ has nowhere been used in the
Constitution. Article 1, on the other hand, describes India as a ‘Union of
States’ which implies two things: one, Indian Federation is not the result of
an agreement by the states; and two, no state has the right to secede from the
federation.
Hence, the Indian Constitution has been variously described as ‘federal in
form but unitary in spirit’, ‘quasi-federal’ by K C Wheare, ‘bargaining
federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin,
‘federation with a centralising tendency’ by Ivor Jennings, and so on.

5. Parliamentary Form of Government

The Constitution of India has opted for the British parliamentary System of
Government rather than American Presidential System of Government. The
parliamentary system is based on the principle of cooperation and coordination
between the legislative and executive organs while the presidential
system is based on the doctrine of separation of powers between the two
organs.
The parliamentary system is also known as the ‘Westminster’10 model of
government, responsible government and cabinet government. The
Constitution establishes the parliamentary system not only at the Centre but
also in the states. The features of parliamentary government in India are:
(a) Presence of nominal and real executives;
(b) Majority party rule,
(c) Collective responsibility of the executive to the legislature,
(d) Membership of the ministers in the legislature,
(e) Leadership of the prime minister or the chief minister,
(f) Dissolution of the lower House (Lok Sabha or Assembly).
Even though the Indian Parliamentary System is largely based on the
British pattern, there are some fundamental differences between the two. For
example, the Indian Parliament is not a sovereign body like the British
Parliament. Further, the Indian State has an elected head (republic) while the
British State has hereditary head (monarchy).
In a parliamentary system whether in India or Britain, the role of the Prime
Minister has become so significant and crucial that the political scientists like
to call it a ‘Prime Ministerial Government’.
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