Kalinga University
Department of Law
Course- LL.M Semester- 1st
subject – CONSTITUTION I
Subject Code- LLMCAL104
Unit I
Introduction to Indian Constitution
The framing of the Constitution was completed on November 26, 1949 when the
Constituent Assembly formally adopted the new Constitution. The Constitution came into force
with effect from January 26, 1950.
The Constitution contains the fundamental law of the land. It is the source of all powers of, and
limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of
the state would be valid unless it is permissible under the Constitution. Therefore, it is imperative
to have a clear understanding of the nature and working of the Constitution.
Objectives of The Constitution
The Constitution of Independent India was framed in the background of about 200 years of
colonial rule, mass-based freedom struggle, the national movement, partition of the country and
spread of communal violence. Therefore, the framers of the Constitution were concerned about
the aspirations of the people, integrity and unity of the country and establishment of a democratic
society. Their main was to give India a ‘Constitution’ which will fulfill the cherished ideas and
ideals of the people of this country.
The Constitution begins with a Preamble which declares India to be a Sovereign,
Socialist, Secular, Democratic, Republic. The Preamble also mentions the goals of securing
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justice, liberty and equality for all its citizens and promotion of national unity and
integrity on the basis of fraternity among the people assuring dignity of the individual.
Salient Features of the Indian Constitution
The main features of Indian Constitution are the following:
1. A written Constitution: The Indian Constitution is mainly a written constitution. A
written constitution is framed at a given time and comes into force or is adopted on a
fixed date as a document. As you have already read that our constitution was framed
over a period of 2 years, 11 months and 18 days, it was adopted on 26th November,
1949 and enforced on January 26, 1950. Certain conventions have gradually evolved
over a period of time which have proved useful in the working of the constitution.
2. Federal Policy: The Constitution of India does not use the term ‘federal state’. It
says that India is a ‘Union of States’. There is a distribution of powers between the
Union/Central Government and the State Governments. Since India is a federation,
such distribution of functions becomes necessary. There are three lists of powers such
as Union List, State List and the Concurrent List.
3. Parliamentary Democracy: India has a parliamentary form of democracy. This has
been adopted from the British system. In a parliamentary democracy there is a close
relationship between the legislature and the executive. The Cabinet is selected from
among the members of legislature. The cabinet is responsible to the latter. In fact the
Cabinet holds office so long as it enjoys the confidence of the legislature. In this form
of democracy, the Head of the State is nominal. In India, the President is the Head of
the State. Constitutionally the President enjoys numerous powers but in practice the
Council of Ministers headed by the Prime Minister, which really exercises these
powers. The President acts on the advice of the Prime Minister and the Council of
Ministers.
4. Fundamental Rights and Duties: Fundamental Rights are one of the important
features of the Indian Constitution. The Constitution provides for six Fundamental
Rights about which you will read in the following lesson. Fundamental Rights are
justiciable and are protected by the judiciary. In case of violation of any of these
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rights one can move to the court of law for their [Link]
Duties were added to our Constitution by the 42nd Amendment. It lays down a list of
ten Fundamental Duties for all citizens of India. While the rights are given as
guarantees to the people, the duties are obligations which every citizen is expected to
perform.
5. Directive Principles of State Policy: The Directive Principles of State Policy which
have been adopted from the Irish Constitution, is another unique feature of the
Constitution of India. The Directive Principles were included in our Constitution in
order to provide social and economic justice to our people. Directive Principles aim
at establishing a welfare state in India where there will be no concentration of wealth
in the hands of a few.
6. Partly rigid and Partly flexible: A constitution may be called rigid or flexible on
the basis of its amending procedure. The Constitution of India provides for three
categories of amendments. In the first category, amendment can be done by the two
houses of Parliament simple majority of the members present and voting of before
sending it for the President’s assent. In the second category amendments require a
special majority. Such an amendment can be passed by each House of Parliament by
a majority of the total members of that House as well as by the 2/3rd majority of the
members present and voting in each house of Parliament and send to the President for
his assent which cannot be denied. In the third category besides the special majority
mentioned in the second category, the same has to be approved also by at least 50%
of the State legislatures.
7. Language Policy: India is a country where different languages are spoken in various
parts of the country. Hindi and English have been made official languages of the
central government. A state can adopt the language spoken by its people in that state
also as its official language.
8. Special Provisions for Scheduled Castes and Scheduled Tribes: The Constitution
provides for giving certain special concessions and privileges to the members of these
castes. Seats have been reserved for them in Parliament, State legislature and local
bodies, all government services and in all professional colleges.
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9. A Constitution Derived from Many Sources: The framers of our
constitution borrowed many things from the constitutions of various other countries
and included them in our constitution. That is why; some writers call Indian
Constitution a ‘bag of borrowings’.
10. Independent Judiciary: Indian judiciary is independent an impartial. The Indian
judiciary is free from the influence of the executive and the legislature. The judges
are appointed on the basis of their qualifications and cannot be removed easily.
11. Single Citizenship: In India there is only single citizenship. It means that every
Indian is a citizen of India, irrespective of the place of his/her residence or place of
birth. He/she is not a citizen of the Constituent State like Jharkhand, Uttaranchal or
Chattisgarh to which he/she may belong to but remains a citizen of India. All the
citizens of India can secure employment anywhere in the country and enjoy all the
rights equally in all the parts of India.
12. Universal Adult Franchise: Indian democracy functions on the basis of ‘one person
one vote’. Every citizen of India who is 18 years of age or above is entitled to vote in
the elections irrespective of caste, sex, race, religion or status. The Indian
Constitution establishes political equality in India through the method of universal
adult franchise.
13. Emergency Provisions: The Constitution makers also foresaw that there could be
situations when the government could not be run as in ordinary times. To cope with
such situations, the Constitution elaborates on emergency provisions. There are three
types of emergency; a) emergency caused by war, external aggression or armed
rebellion; b) emergency arising out of the failure of constitutional machinery in
states; and c) financial emergency.
Theory of Basic Structure
1. Supremacy of Constitution
2. Republican and Democratic form of Government
3. Secular Character of Constitution
4. Separation of Powers between the Legislature, the Executive and the Judiciary
5. Federal Character of Constitution
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Nature of the Indian Constitution – Federal, Unitary, Quasi-federal
In a Democratic government, Constitution plays a primary role in efficient governance.
Constitution is a set of fundamental principles or established precedents according to which a
State can be governed. Constitutions may be classified into two categories. Such as: Federal or
Unitary.
What is Federal and Unitary Constitution?
In a Unitary Constitution, all the powers of a Government are concentrated in a central authority.
The States or the different constituents of the Country are subordinate to such central authority.
However, in Federal Constitution, powers are distributed among the center and the States. States
are not subordinates of the central government. Constitution of USA, Australia are considered to
be federal in nature.
Is Indian Constitution a federal or unitary in nature?
Indian Constitution is an hybrid of both federal and unitary nature of a Constitution and hence
rightly termed as ‘Quasi-federal‘ Constitution. It means a federal set up where despite having
two clear sets of government – central and the states, more powers are given to the Central
Government.
Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it should displays
federal character predominantly.
Following are the defining features of federalism:
Distribution of Powers between center and states
Supremacy of the Constitution
Written Constitution
Rigidity of the Constitution
Independent Judiciary
Factors that affect the federal character of the Constitution of India are:
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Appointment of the Governor of a State
Power of the parliament to make laws on subjects in the State list.
Power to form new states and to change existing boundaries
Emergency Provisions
The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been
grappling the Apex court in India because of the theoretical label given to the Constitution of
India, namely, federal, quasi-federal, unitary. The first significant case where this issue was
discussed at length by the apex Court was State of West Bengal V. Union of India. The main
issue involved in this case was the exercise of sovereign powers by the Indian states. The
legislative competence of the Parliament to enact a law for compulsory acquisition by the Union
of land and other properties vested in or owned by the state and the sovereign authority of states
as distinct entities was also examined. The apex court held that the Indian Constitution did not
propound a principle of absolute federalism. Though the authority was decentralized this was
mainly due to the arduous task of governing the large territory. The court outlined the
characteristics, which highlight the fact that the Indian Constitution is not a “traditional federal
Constitution”.
Thus, it can be said that Indian Constitution is primarily federal in nature even though it has
unique features that enable it to assume unitary features upon the time of need.
Principles of Federalism
The Indian Constitution is basically federal in form and is marked by the traditional
characteristics of a federal system, namely, supremacy of the Constitution, division of power
between the Union and State Governments, existence of an independent judiciary and a rigid
procedure for the amendment of the Constitution.
There is an independent judiciary to determine issues between the Union and the States, to be
exercised in fields assigned to them respectively. However, there are marked differences between
the American federation and the Indian federation. They are:
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1. America has a dual citizenship, while in India, there is single citizenship
2. States in America have a right to make their own Constitutions, whereas no such
power is given to States in India
3. Indian Constitution exhibits a centralizing tendency in several of its provisions
4. In certain circumstances, the Union is empowered to supersede the authority of the
State or to exercise powers otherwise vested in the States
CASE LAWS
1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1
2. S. R. Bommai v. Union of India, AIR 1994 SC 1918 8
3. State of West Bengal v. Union of India, AIR 1963 SC 1241 24
4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39
5. Kuldip Nayar v. Union of India, AIR 2006 SC 3127
6. State of Haryana v. State of Punjab, AIR 2002 SC 685
