vipangoyal13
drvipangoyal
Dr Vipan Goyal
vipangoyal13
[Link]@[Link]
Dr. Vipan Goyal
Salient features of the Constitution
• 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 and 74th
Amendments. In fact, the 42nd Amendment Act (1976) is known as
‘Mini-Constitution’.
• However, in the Kesavananda Bharati case (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.
Features:
1. Lengthiest Written 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, it consists of a Preamble, 465 Articles (divided into 25
Parts) and 12 Schedules.
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.
(d) Dominance of legal luminaries in the Constituent Assembly.
2. Blend of Rigidity and Flexibility
• 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.
*Note: 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.
3. Federal System with Unitary Bias
Features of a federation in Indian Unitary/Non Federal features in the
Constitution Indian Constitution
• two government, • a strong Centre,
• division of powers, written • single Constitution,
Constitution, • single citizenship,
• supremacy of Constitution, • flexibility of Constitution,
• rigidity of Constitution, • integrated judiciary,
• independent judiciary • all-India services,
• Bicameralism, etc. • emergency provisions, etc.
*Note:
1. 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.
2. ‘quasi-federal’ by K C Wheare,
3. ‘bargaining federalism’ by Morris Jones,
4. ‘co-operative federalism’ by Granville Austin,
5. ‘federation with a centralizing tendency’ by Ivor Jennings, and so on.
4. Parliamentary Form of Government
• The parliamentary system is based on the principle of cooperation and
co-ordination between the legislative and executive organs
• The presidential system is based on the doctrine of separation of
powers between the two organs.
• 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).
*Note:
1. The parliamentary system is also known as the ‘Westminster’ model
of government, responsible government and cabinet government.
2. Indian Parliamentary System is largely based on the British pattern,
however, there are some fundamental differences between the two:
• 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).
5. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
• The framers of the Indian Constitution have preferred a proper
synthesis between the British principle of parliamentary sovereignty
and the American principle of judicial supremacy.
• The Supreme Court, on the one hand, can declare the parliamentary
laws as unconstitutional through its power of judicial review. The
Parliament, on the other hand, can amend the major portion of the
Constitution through its constituent power.
6. Integrated and Independent Judiciary Polity.
The Indian Constitution establishes a judicial system that is integrated as
well as independent.
• The Supreme Court stands at the top of the ‘integrated’ judicial system
in the country:
• Below it, there are high courts at the state level.
• Under a high court, there is a hierarchy of subordinate courts, that is, district courts
and other lower courts.
• This single system of courts enforces both the central laws as well as the state laws
• the Constitution has made various provisions to ensure its
independence:
• security of tenure of the judges,
• fixed service conditions for the judges,
• all the expenses of the Supreme Court charged on the Consolidated Fund of
India,
• prohibition on discussion on the conduct of judges in the legislatures,
• ban on practice after retirement,
• power to punish for its contempt vested in the Supreme Court,
• separation of the judiciary from the executive
• 7. Fundamental Rights
• Fundamental Rights Part III of the Indian Constitution guarantees
six fundamental rights to all the citizens:
• a) Right to Equality (Articies 14-18)
• (b) Right to Freedom (Articles 19-22)
• (c) Right against Exploitation (Articles 23-24)
• (d) Right to Freedom of Religion (Articl es 25-28)
• (e) Cultural and Educational Rights (Articles 29-30) and
• (f) Right to Constitutiona l Reme die s (Artic le 32)
• Originally, the Constitution provided for seven Fundamental Rights. However, the Right to
Property (Article 31) was deleted from the list of Fundamental Rights by the 44th
Amendment Act of 1978. It is made a legal right under Article 300-A in Part XII of the
constitution . The Fundamental Rights are meant for promoting the idea of political
democracy. They operate as limitations on the tyranny of the executive and arbitrary laws
of the legislature.
• However, the Fundamental Rights are not absolute and subject to reasonable restrictions.
Further, they are not sacrosanct and can be curtailed or repealed by the Parliament
through a Constitutional Amendment Act.
• They can also be suspended during the operation of a National Emergency except the
rights guaranteed by Articles 20 and 21.
•8. Directive Principles of State Policy
• According to Dr. B.R. Ambedkar, the Directive Principles of State Policy
is a 'novel feature' of the Indian Constitution. They are enumerated in
Part IV of the Constitution. They can be classified into three broad
categories socialistic, Gandhian and liberal-intellectual.)
• In the Minerva Mills cases ( 1980), the Supreme Court held that 'the
Indian Constitution is founded on the bedrock of the balance between
the Fundamental Rights and the Directive Principles'.
• 9. Fundamental Duties
• The original constitution did not provide for the Fundamental Duties of the
citizens.
• These were added during the operation of internal emergency (1975-77) by the
42nd Constitutional Amendment Act of 1976 on the recommendation of the
Swaran Singh Committee.
• The 86th Constitutional Amendment Act of 2002 added one more fundamental
duty.
• Part IV-A of the Constitution (which consists of only one Article 51-A) specifies the
eleven Fundamental Duties.
•10. Secular State
• The Constitution of India stands for a Secular State.
• Hence, it does not uphold any particular religion as the official religion of the Indian
State.
• The Western concept of secularism connotes a complete separation between the
religion (the church) and the state (the politics).
• This negative concept of secularism is inapplicable in the Indian situation where the
society is multi religious.
• Hence, the Indian Constitution embodies the positive concept of secularism, i.e.,
giving equal respect to all religions or protecting all religions equally.
11. Universal Adult Franchise
[Link] Citizenship
13. lndependent Bodies
14. Emergency Provisions
15. Three-tier Government
16. Co-operative Societies : The 97th Constitutional Amendment Act of 2011 gave a
constitutional status and protection to co-operative societies.
[Link] made the right to form co-operative societies a fundamental right (Article 19).
2. It included a new Directive Principle of State Policy on promotion of co-operative societies
(Article 43-B).
3. It added a new Part IX-B in the Constitution which is entitled as "The Co-operative
Societies" (Articles 243-ZH to 243-ZT)
It empowers the Parliament in respect of multi-state cooperative societies and the state
legislatures in respect of other co-operative societies to make the appropriate law.
CRITICISM OF THE CONSTITUTION
A Borrowed Constitution
A Carbon Copy of the 1935 Act :
N. Srinivasan observed that the Indian Constitution is "both in language and substance a close copy of
the Act of 1935".
Similarly, Sir Ivor Jennings, a British Constitutionalist, said that "the Constitution derives directly from
the Government of Indi a Act of 1935 from which, in fact, many of its provisions a re copied almost
textually".
Further, P.R. Deshmukh, a member of the. Constituent Assembly, commented that "the Constitution is
essentially the Government of India Act of 1935 with only adult franchise added".
The same Dr. B.R. Ambedkar answered the above criticism in the Constituent Assembly in the following
way: "As to the accusation that the Draft Constitution has reproduced a good part of the provisions of
the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in
borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a
Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935,
relate mostly to the details of administration.
CRITICISM OF THE CONSTITUTION
Un-Indian or Anti-Indian
In this context, K. Hanuman thaiya, a member of the Constituent Assembly, commented: "We wanted
the music of Veena or Situ, but here we have the music of an English band. That was because our
Constitutionmakers were educated that way".
Similarly, Lokanath Misra, another member of the Constituent Assembly, criticized the Constitution as a
"slavish imitation of the west, much more a slavish surrender to the west".
Further, Lakshminarayan Sahu, also a member of the Constituent Assembly, observed: "The ideals on
which this draft Constitution is framed have no manifest relation to' the fundamental spirit of India.
This Constitution would not prove suitable and would break down soon after being brought into
operation”.
CRITICISM OF THE CONSTITUTION
An Un-Gandhian Constitution
In this context, the same member of the Constituent Assembly, K. Hanumanthaiya , said: "That is exactly
the kind of Constitution Mahatma Gandhi did not want and did not envisage".
T. Prakasam, another member of the Constituent Assembly, attributed this lapse to Ambedkar's non-
participation in the Gandhian movement and the antagonism towards the Gandhian ideas.
Elephantine Size :
In this context, H.V. Kamath, a member of the Constituent Assembly, commented: "The emblem and the
crest that we have selected for our assembly is an elephant. It is perhaps in consonance with that our
constitution too is the bulkiest that the world has produced".
He also said: "I am sure, the House does not agree that we should make the Constitution an
elephantine one".
CRITICISM OF THE CONSTITUTION
Paradise of the Lawyers
Ivor Jennings called it a "lawyer's paradise".
(Sources of Indian Constitution)
Salient features of the Constitution
• Government of India Act 1935 (75% of the constitution)
• Federal Scheme (also from constitution of Canada)
• Office of Governor
• Judiciary
• Public Service Commission
• Emergency Provisions
Dr. BR. Ambedkar proudly acclaimed that the Constitution of India has been
framed after ransacking all the known Constitutions of the World.
• British Constitution
• Parliamentary form of government
• single citizenship
• Rule of law
• Institution of Speaker and his role
• Law making procedure
• Procedure established by Law
• Bicameral Legislature
• Cabinet system of ministers
• United States Constitution
• Preamble
• Written Constitution
• Fundamental Rights
• Independence of the judiciary and separation of powers among the three
branches of the government
• Judicial review
• President as supreme commander of armed forces
• Equal Protection under law
• Vice President as the ex office Chairman of Rajya Sabha
• Irish Constitution
• Directive principles of state policy {Ireland itself borrowed it from Spain}
• Method of Election of President
• Nomination of members in Rajya Sabha by the President
•
• Australian Constitution
• Freedom of trade and commerce within the country and between the states
• Joint Session of two house of Parliament
• Concurrent List
• French Constitution • Residual powers retained by the
• Ideals of Liberty, Equality and central government
Fraternity •
• • Constitution of the Soviet
• Canadian Constitution Union/USSR/Russia
• A quasi-federal form of • Fundamental Duties
government — a federal system • Five Year Planning
with a strong central government
• Distribution of powers between
the central government and state
governments
• Constitution of the Germany/ Weimar Constitution
• Emergency Provisions
• Constitution of the South Africa
• Amendment of Constitution
• Election of members of Rajya Sabha
•
• Constitution of the Japan
• Due Procedure of Law
• Due Process of Law = Procedure Established by Law + The procedure
should be fair and just and not arbitrary.
vipangoyal13
drvipangoyal
Dr Vipan Goyal
vipangoyal13
[Link]@[Link]
Dr. Vipan Goyal
THANK YOU