HISTORICAL BACKGROUND OF INDIAN CONSTITUTION – 2
Blend of Rigidity and Flexibility
The procedure for amending the constitution of India is neither as simple as that of amending ordinary laws nor too rigid. Article 368 provides two types of special procedures for the amendment of the constitution. They are
- Amendment by special majority of the Parliament.
- Amendment by special majority of the Parliament and ratification by half the number of states.
- FEDERAL WITH UNITARY BIAS
Indian constitution provides for a federal system of government with a strong centre.
||Two governments – The central and the state governments.
||Appointment of governors by the centre.
||Division of powers between the centre and the states.
||Single constitution and single citizenship.
||Supremacy of constitution.
||Flexibility of the constitution
||All India Services
- PARLIAMENTARY FORM OF GOVERNMENT
India follows the parliamentary form of government both at the centre and the states.
||Features of Parliamentary System
||Nominal executive is The Head Of The State And Real Executive is the head of the government.
||Majority party rule.
||Collective responsibility of the council of ministers to the Parliament, especially the lower house.
||Council of Ministers is members of the legislature.
||Provisions for the dissolution of lower house.
- Synthesis of Parliamentary Sovereignty and Judicial Supremacy:
The powers of the Indian Parliament are restricted by the Judiciary through judicial review. However, the scope of judicial review of Indian judiciary is not as wide as that of American judiciary. When a law passed by the Parliament violates the provisions of the constitution, the judiciary can struck down the law as ‘unconstitutional’. On the other hand, the Parliament can amend the provisions of the constitution itself, without changing the basic structure of the constitution.
- INTEGRATED AND INDEPENDENT JUDICIARY:
The Indian judiciary is an integrated institution with Supreme Court placed at the top and the High Courts of the states and other subordinate courts placed below the SC in the hierarchy. The independence of the judiciary is ensured by the following provisions.
- Security of tenure of judges.
- Fixed service conditions for all the judges.
- The conduct of judges cannot be discussed in the legislatures.
- Prohibition of practice after retirement.
- Power to punish for the contempt of courts.
- Separation of judicial powers from the executives.
- All the administrative expenses of the judiciary are charged on the Consolidated Fund of India.
- FUNDAMENTAL RIGHTS:
Fundamental Rights(FRs) are aimed at providing political democracy to the people of India. These rights place limitations on the actions of both the legislature and the executives. However, the FRs are not absolute and reasonable restrictions are placed on its exercise.
- DIRECTIVE PRINCIPLES OF STATE POLICY:
The Directive Principles of State Policy (DPSP) are aimed at providing social and economic democracy. Unlike the FRs, the directive principles are non-justiciable. These are just moral obligations placed on the governments.
- FUNDAMENTAL DUTIES:
The Fundamental Duties (FDs) acts as a reminder to the citizens that while they enjoy FRs, they should also fulfill their duties towards the state and the society.
The principle of ‘Secularism’ is a basic feature of Indian constitution. Unlike in the USA, in India, the state follows positive secularism, wherein the state does not completely disassociate itself from the religious matters rather it creates an environment in which every citizen can freely follow his/her faith. The constitution guarantees liberty of belief, faith and worship to all the citizens.
- UNIVERSAL ADULT FRANCHISE:
Universal adult franchise enhances the self-respect of individuals and also enables the voices of marginalised sections of population and minorities to be heard.
- SINGLE CITIZENSHIP:
Single citizenship ensures that all the citizens of the country enjoy same civil and political rights throughout the territory of India.
- INDEPENDENT BODIES:
The constitution provides for independent bodies such as the Election Commission of India(ECI), Comptroller and Auditor General of India(CAG), Union Public Service Commission(UPSC),
State Public Service Commission(SPSC) and Joint State Public Service Commission(JSPSC) for the efficient functioning of democracy.
- EMERGENCY PROVISIONS:
To tackle the extraordinary situations such as war, external aggression and armed rebellion, the constitution provides special provisions for the proclamation of ‘Emergency’. Once the ‘Emergency’ is proclaimed, the federal system of government becomes unitary and the central government becomes all powerful.
- THREE-TIER GOVERNMENT:
The 73rd and the 74th constitutional amendment acts provided for the establishment of PanchayatsAnd Municipalities
as the third tier of government. This is a unique feature of Indian constitution and it is not found anywhere in the world.
- COOPERATIVE SOCIETIES:
The Cooperative societies play a significant role in the development of rural India by enhancing the economic activities of rural population. The right to form cooperative societies has been made as a FR under article 19
. In addition to that, a new directive principle has been added for the promotion of cooperative societies under article 43B.
The preamble of the Indian constitution is an introductory statement that explains the core values and ideologies incorporated in the constitution.
THE PREAMBLE INSIGHTS
The source from which the constitution draws its authority.
SIGNIFICANCE OF THE PREAMBLE
- The nature of Indian political system.
- The Social, Economic and Political objectives of the constitution.
- The date of adoption of the constitution.
The Preamble acts as a guiding light to the judiciary in interpreting the objectives of every provision included in the constitution.
The Preamble, a closer look
Source of authority:
|WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The Preamble clearly states that the constitution draws its authority from the people of India.
NATURE OF INDIAN POLITICAL SYSTEM
Sovereignty means being independent.
It is of two types, namely, Internal And External
sovereignty. India is both internally and externally sovereign. Internal sovereignty means having a government that is free to make laws and govern the country. External sovereignty means being independent of foreign countries.
The term ‘Socialist’ refers to a political system that follows the philosophy of socialism
. Socialism is basically an economic system, in which, the wealth is shared equally among the people
. The Indian version of socialism is focused only on reducing inequality among the people and providing Social, Economic And Political Justice
to all. Thus, India adopts a mixed economy, in which, both the public and private sectors co-exist peacefully.
Secularism means that the State administration is not bound by religious rules.
Yet, all the religions in India enjoys the same status and support from the government.
Democracy is a system of government, in which, the people rule themselves either directly or through their representatives. India adopted the democratic system and conducts free elections
at regular intervals. The ultimate authority to rule the people of India is given to the people themselves.
A Republic country is one, in which, no public office of prime importance is inherited. The country as a whole is considered as a ‘Public Property’,not private property as in the case of countries following Monarchy. In India, even the head of the state is elected
(indirectly) by the people at regular intervals.
THE OBJECTIVES OF THE CONSTITUTION
SOCIAL, ECONOMIC AND POLITICAL
Justice simply means just treatment. The constitution envisages to creating a just society, in which, everyone will have equal social, economic and political rights
and opportunities. The provisions of the Fundamental Rights and the Directive Principles of State Policy are incorporated into the constitution with the goal of creating a just society.
Liberty is the ability to do what one likes
. But, the liberty in the Indian Constitution is qualified, not absolute. One has to exercise one’s liberty within the limitations described by law
Equality means the absence of discrimination
. The constitution aims to provide equal status and opportunities to all the sections of the population without discriminations. Equality is the prerequisite of justice.
Fraternity is the sense of feeling that all Indians belong to the same Motherland and thus are brothers. In a diverse country like India, to maintain the unity and integrity of the country, it is essential to cultivate the sense of brotherhood
among the people. This can be achieved only by protecting the dignity of individuals by instilling justice.
AMENDABILITY OF THE PREAMBLE:
|Amendments to the Preamble: The Preamble has so far been amended once by the 42nd constitutional amendment act (1976), which added the terms socialist, secular and integrity to it.
Earlier, the Preamble was not regarded as a part of the constitution. In theBerubari Union case (1960)
, the Supreme Court held that preamble was not a part of the constitution. Later in the KesavanandaBharati case (1973),
the Supreme Court held that Preamble is a part of the constitution and hence can be amended under Article 368
, without altering the Basic Structure of the constitution.
1) The Preamble is not justiciable.
2) The Preamble can be amended under Article 368, without altering the Basic Structure of the constitution.
3) The Preamble neither restricts nor provides powers to the legislature.