Part-2 NATURE AND FEATURES OF INDIAN CONSTITUTION

 WHY THE FRAMERS OF INDIAN CONSTITUTION CHOSE ‘FEDERALISM’?

The framers of Indian Constitution turned to federalism as a solution of a number of problems they confronted in their attempt to frame a constitution of a new united India. Particularly, they wanted to preserve both the “infinite variety and the innate unity” that animated the length and breadth of India. The choice of federalism as a constitutional form and as the basis of a national government in India was not a sudden development upon the transfer of power on 15th August, 1947. It was there for many years and, in a limited form, it was already in operation in British India. For the resolution of the constitutional problem of a multi-racial, multi-lingual and multi-communal country like India with a vast area and a huge population, federalism was only a natural choice. Nevertheless, the framers were cautious to ensure that the unity they sought to establish through federalism was of an abiding nature and in case of a future conflict between that unity and the diversity preserved under the Constitution; the former should prevail over the other. In other words, it was their intention to create an indestructible Union and the supremacy of the Union over the states in a number of matters vitally affecting the interest of the nation.

Federalism

Federalism is one of the most important aspects of modern constitutions. It is established all over the world perhaps, as the only form of political organization suited to communities with a diversified pattern of objectives, interests and traditions, who seek to join together in the pursuit of common objectives and interests and the cultivation of common traditions. The basic objective of federalism is thus unity in diversity, devolution in authority and decentralisation in administration. Its fundamental characteristic is the division of powers between two sets of governments – a Central Government and State Government – each independent of the other in its own sphere of activity.

 Federal vs. Unitary Features

India has two governments functioning at the national and state levels with a clear cut distribution of powers. Both the State and the Union Government, draw their authority from the Constitution. The supremacy of the Republic lies not with either the Union Government or the State Governments but with the Constitution. To uphold the legal supremacy of the Constitution, the power to interpret the constitution has been vested in the judiciary. Thus, the Indian Constitution has four federal features:

(a) clear division of powers between the two governments;

  1. b) dual system of government;

(c) supremacy of the Constitution; and

(d) authority of the judiciary to interpret theconstitution.

The word ‘federation’ has not been used anywhere in the Constitution. In fact, India has been described as a Union of States. The provinces and the princely States were not sovereign entities before they joined the federation. The states are not ‘inviolable’ or ‘indestructible’ as in the USA. Parliament can by law change or alter the areas and boundaries of any State. No state has the right to secede from the Union. All the constituent States of the Union are not equal. The Union Territories do not enjoy the same status as the States. Unlike the American Constitution, the Indian Constitution does not provide for any safeguards for the protection of the rights of States. Except Jammu & Kashmir, no state has its own Constitution as in the U.S. Whereas the consent of the States is vital for an amendment of the American Constitution, the consent of the States in India is necessary only in regard to a few specific matters.

 WHAT ARE THE ‘UNITARY’ FEATURES OF INDIAN CONSTITUTION?

There are some unitary features in Indian Constitution. They may be enlisted as below:

(a) Right of the Governor to reserve a Bill for Presidential assent;

(2) Role and functions of the State Governors;

(3) Emergency provisions of the Constitution regarding proclamation of national emergency, financial emergency and President’s rule;

(4) Provisions of the Constitution enabling Parliament to legislate for the States;

(5) Uniform All-India Services;

(6) Single and uniform citizenship;

(7) Uniform and integrated judicial system; and

(8) Constitutional scheme of distribution of legislative, administrative and financial powers between the Union and the States also has a strong unitary bias.

Parliamentary Government

The framers of our Constitution preferred parliamentary system of government. Our infant democracy could ill-afford any confrontation between executive and the legislature if they were separate and independent of each other. The President of India is the constitutional head of the Union Executive, but he exercises the executive power, vested in him, in accordance with the advice of the Union Council of Minis ters. The real executive power thus vests with the Council of Ministers with the Prime Minister as the head. The Council of ministers is collectively responsible to the Lok Sabha. The same is true of the relationship between the Governors and the Council of Ministers in the States. The parliamentary system of government both at the Centre and in the State is based on adult suffrage whereby all citizens of India who are not less than 18 years of age and not otherwise disqualified by the Constitution or any law, have the right to vote. It is a bold political experiment in view of the vastness of the country, its large population, poverty and illiteracy. Though some current practices have vitiated the process of election, adult franchise has not shaped people’s political perceptions.

 Why the Indian Constitution is lengthy?

It is the most lengthy and legalistic constitutional document any country has so far adopted. One reason is that the Constitution has drawn from a variety of sources. The other is that the constitution-makers ensured that no element of uncertainty was left. It codifies in detail the relationship between the Union and the States and the State’s interests and contains both justiciable and non-justiciable rights as well as fundamental duties. As the Constitution is not only a legal document, but an instrument of social change, it has to be a detailed document in order to ensure that it stands the test of any situation in future. Also, care has been taken to ensure that the Constitution is not subverted or perverted by any future government, thus, there are numerous in-built constitutional safeguards. Another reason for the length of the Constitution is that, there are temporary, transitional and special provisions for the state of Jammu and Kashmir and it also take care of the regional problems in States like Gujarat, Maharashtra, Andhra Pradesh, Sikkim, Assam, Nagaland and Manipur. The legalistic nature of the Constitution is also partly because of heavy borrowings from the Government of India Act of 1935.

 Rigidity vs. Flexibility

Some eminent constitutionalists are of the view that the Indian constitution is rigid. But, then how it has been possible to amend the constitution over 90 times. Indian constitution is more flexible than the American constitution, which requires ratification of amendments by three-fourths of the States. In Indian constitution, only amending of a few provisions requires ratification of amendments by three fourths of the states. In our constitution only amending of a few provisions requires ratification by half of the State Legislatures. While most of the provisions of the Constitution can be amended by two thirds majority of each of the Houses of Parliament and many of the provisions can be altered or modified by a simple majority. Also, the constitution can be supplemented by simple legislations like the Citizenship Act, National Security Act, and the Untouchability Act etc. Moreover, the scope for the growth of conventions to supplement the Constitution makes it more flexible. Conventions govern the privileges and rights of the legislature, the functioning of the cabinet system, the status of the Cabinet Secretariat, etc.

 Single Citizenship

In a federation there is usually double citizenship. A citizen belongs to the State in which he is born and also enjoys the citizenship rights of the federation, to which his state has joined as a unit. This is one of the basic principles of federalism, that the states in a federation are units of federation, but do not give up their individual entity. But in India, there is single citizenship. Citizens belong to the Indian Union and not to any state. Provision for single citizenship for the whole of India was perhaps intentional. The constitution fathers did not like that regionalism and other disintegrating tendencies which had already raised their ugly heads and were endangering the very security and integrity of country, should be further encouraged by providing double citizenship. Provision for double citizenship would have naturally stood on the way of emotional and national integration. The people in the State would have thought more in terms of the State than the country as a whole. Single citizenship has undoubtedly forged a sense of unity among the people of India and image of United India is reflected by this provision.