Part-1 NATURE AND FEATURES OF INDIAN CONSTITUTION

NATURE AND FEATURES OF INDIAN CONSTITUTION

Every constitution aims to build up a governmental structure based upon certain basic principles. And these principles are more or less well established. Although some of these principles are common to most constitution, there are others which vary from constitution to constitution. The constitution of India is not an exception to this rule and it has its own basic principles. India, a union of states, is a sovereign, socialist, secular, democratic, republic. The constitution of a country is the basic orsupreme law. Indian constitution is federal in structure but with unitary features. It is a lengthy and legalistic document, but reasonably flexible. Its major features include.

 Popular Sovereignty

Indian Constitution proclaims the sovereignty of the people in its Preamble itself. The idea is reaffirmed in several places in the Constitution, particularly in the chapter dealing with elections. Article 326 declares that “the elections to the House of people and the Legislative Assembly of every state shall be on the basis of adult suffrage”. As a result, the Governments at the Centre and in the States derive their authority from the people who choose their representatives for Parliament and the State Legislatures at regular intervals. Further, those who wield the executive power of the government are responsible to the legislature and through them to the people. Thus, in the affairs of the State, it is the will of the people that prevails ultimately and not the will of a few individuals. This is the principle of popular sovereignty.

 Rule of Law

According to this axiom, people are ruled by law but not by men, that is, the basic truism that no man is infallible. The axiom is vital to democracy. More important is the inherent meaning that the ‘law’ is the sovereign in democracy. The chief ingredient of law is custom which is nothing, but the habitual practices and beliefs of common people over long years. In thefinal analysis, rule of law means the sovereignty of the common man’s collective wisdom. Apart from this crucial meaning, rule of law means a few more things like

  • there is no room for arbitrariness;
  • each individual enjoys some fundamentalrights; and
  • the highest judiciary is the final authority in maintaining the sanctity of the law of the land. It is this spirit that make Article 14 (all are equal before law and all enjoy equal protection of laws) meaningful, like providing legal assistance to the needy, promotion of Lok Adalats and the venture of the Supreme court known as “public interest litigation”. Also, as per today’s law of the land, any litigant can appeal to the presiding judicial authority to argue the case by himself or seek legal assistance with the help of the judiciary.

WHY THE CONSTITUENT ASSEMBLY ADOPTED THE PRINCIPLE OF ADULT FRANCHISE?

In spite of the ignorance and illiteracy of large sections of the Indian people, the constitution Assembly adopted the principle of adult franchise with faith in the common man and the ultimate success of democratic rule. The Assembly was of the opinion that democratic government on the basis of adult suffrage would alone “bring enlightenment and promote well-being.” All that the Constitution provides is that every adult citizen of India shall have right to vote. This becomes significant when viewed in the background that for quite a long time, the women in many parts of Europe did not enjoy any such right. In addition, under the Government of India Act, 1935, hardly 15 per cent Indian citizens had this right. According to some thinkers this is the boldest step which has been taken by our constitution fathers. This shows that they had full faith in the capacity of the people of India to use their right properly. Some critics of course felt that it was premature to give to the people of India this right when there was poverty and illiteracy and the masses were yet politically not mature. But constitution fathers took a bold step and resolved to go ahead and wanted to make a beginning in this direction right earnestly

 Judicial Review

The right of the judiciary to review executive acts and legal enactments when they are not in conformity with the established law of the land and its procedures is known as judicial review.

 Socialism

Increasing intervention as well as participation by the State in the economic field has been a distinguishing feature of the twentieth century. There is hardly any country today in which the State is not actively engaged in a variety of economic activities. In varying degrees, governments everywhere are involved in economic, industrial, commercial management. This is broadly described as the influence of socialist ideas on State activity. Even before the adoption of a new Constitution, the Government of independent India had made clear its policy to enter the economic field in a very active manner. The Industrial Policy Resolution of 1948 gives ample evidence of this. It envisaged a greater role for the State in the economic development of the country. Certain industries such as atomic energy, manufacturing of arms and ammunition were declared to be the sole monopoly of the State. The right of the State to nationalise any major industry and bring it within the public sector was also clearly stated. The Directive Principles of State Policy, however, unmistakably set out the socialist objective of the Constitution; although one might point out that they do not go far enough to establish a full fledged socialist order.

 Socialism in Constitutional Amendments

Successive amendments to the Constitution of India clearly show that the direction is more towards the realisation of socialist than the democratic ideal. The constitution was amended several times with a view to realising this objective. Among those amendments, special mention may be made of the First, Fourth, Seventeenth, Twenty fifth, Twenty ninth, Thirty fourth and Forty second Amendments. Almost all of these gave precedent to the Directive Principles over Fundamental Rights in the implementation of certain legislative enactments. The Forty second Amendment (1976) went a step further and amended the permeable of the Constitution to include specifically the term “socialist” which was absent in the original form in which it was enacted.

 WHAT ARE THE FEATURES OF A SECULAR DEMOCRACY?

The distinguishing features of a secular democracy

as contemplated by the Constitution of India are:

(i) The State will not identify itself with or be controlled by any religion

(ii) While the State guarantees to everyone the right to profess whatever religion one chooses to follow (which includes also the right to be an antagonist or an atheist), it will not accord an preferential treatment to any of them

(iii) No discrimination will be shown by the State against any person on account of his religion or faith

(iv) The right of every citizen, subject to any general condition, to enter any office under the state will be equal to that of the fellow citizens. Political equality which entitles any Indian citizen to seek the highest office under the State is the heart and soul of secularism as envisaged by Constitution.

Securalism

Indian Constitution aims to establish a secular state. This does not mean that the State in India is anti-religious. India has declared its identity as a “Sovereign, Socialist, Secular, Democratic, Republic.” The attributes of Socialist and Secular were added in 1976 by the 42nd Amendment to the Constitution. The bulky document does not attempt to define secularism. However, a definition is derived from the fundamental right that proclaims that “The State shall not discriminate against any citizen on grounds of religion, race, caste, sex place of birth or any one of them.’ The Indian State has no religion of its own. The fundamental right of speech and freedom also means the right to preaching and proselytising religion. This is made clearer in Articles 25-28, “Subject to public order, mortality and health… all persons are equally entitled to freedom of conscience and the right to profess, practice and propagate religion”. Every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes, to maintain its own affairs in matters of religion. No person shall be compelled to pay any taxes for promotion of any particular religion. No religious instructions shall be provided in any educational institutions wholly maintained out of the State funds.

 HOW THE CONSTITUTION ENSURES INDEPENDENCE OF THE JUDICIARY?

In its bid to establish complete independence of the judiciary, the Indian Constitution has first erected a wall of separation between the executive and the judiciary. After effecting such separation, it has created conditions that are conducive to making the judiciary independent. Thus, rigid qualifications are laid down for the appointment of Judges and provision has been made for compulsory consultation of the Chief justice of India in the appointment of every judge of the Supreme Court and the High Courts. Conditions of service of a Judge cannot be altered to his/her disadvantage, once he/she is appointed. Judges are given high salaries and their conduct is made a subject beyond the scope of discussion in the legislature. They can be removed from office only for proved misbehaviour. For this purpose, both the houses of Parliament will have to pass resolutions against the Judge supported by a two third majority of those who sit and vote and atleast an absolute majority of the total membership of the house.

 Judicial Independence

The framers of Indian Constitution were aware that democratic freedom was meaningless in the absence of an independent machinery to safeguard it. No subordinate or agent of the government could be trusted to be just and impartial in judging the merits of a conflict in which the government itself was a party. Similarly, a judiciary, subordinate either to the Center or the State could not be trusted as an impartial arbiter of conflicts and controversies between the Center and the State. These were compelling reasons for the creation of an independent judiciary as an integral part of the Constitution and for the adoption of judicial independence as a basic principle of the Constitution.