3

SALIENT FEATURES OF THE INDIAN

CONSTITUTION
( . The lengthiest Constitution in the worldThe Indian Constitution is the
lengthiest and the most detailed of all the written Constitutions of the world While the
American Constitution consisted of only 7 Articles, the Australian
originally
Constitution 128 Articles, the Canadian Constitution 147 Articles, the Indian
Constitution originally consisted of 395 Articles divided into 22 Parts and 8 Schedules.
Schedules in the
The last numbered Article is 395 and there are 25 Parts and 12
Articles have
Constitution. Since 1951, several Articles have been added to and several
bulk of the Constitution is due to
heen omitted from the Constitution) This extraordinary
severalreasons
(D The framers of the Indian Constitution have gained experience from the working
aware of the difficulties faced in
of all the known Constitutions of the world. They were
the working of these Constitutions. This was the reason that they sought to incorporate
to avoid defects and loopholes that might
good provisions of those Constitutions in order the
come in future in the working of
the Indian Constitution. Accordingly, they framed
model of the American Constitution. and
Chapter of the Fundamental Rights on the took the
Govemment from the United Kingdom, they
adopted the parliamentary system of
idea of the Directive Principles of State Policy
from the Constitution of Ireland. and added
of the Constitution of the
elaborate provisions relating to Emergency in the light
German Reich and the Government of India Act,
1935.
structure not only of the Central
Indian Constitution lays down the
(2) The to draw
Government but also of the States. The
American Constitution leaves the States

up their own Constitutions.

have
(3) The vastness of the country and peculiar problems relating to the language
added to the bulk of the Constitution.
of Fundamental Rights and also a number
(4) The Constitution contains a long list the individual. Though
of Directive Principles, which confer no justifiable rights upon
enforceable yet the framers
made legally
these directives by their very nature could not be constant
with a view that it would serve as
incorporated them in the Constitution order to
will have to implement them in
reminder to the future Governments that they
in the Preamble of the Constitution.
achieve the ideals of the welfare State as envisaged
It was also felt that the smooth working
of an infant democracy might be jeopardised
unless the Constitution mentioned in
detail things which were left in other Constitutions
we have in our Constitution detailed
to ordinary legislation. This explains why Public Service
of the judiciary, the services, the
provisions about the organisation
and the like.
Commissions, Elections and many transitory provisions

Constituent Assembly Debates, Vol. XI, pp. 839-40.

I.

(23)
 CONSTITUTh AL LAW OF INDIA
24
Establishment of a Sovereign, Socialist, Secular Democratic Repuhe CHAP.3
Preamble of the Constitution declares India to be a Sovereign
eign, blic.-The Socialist,
Democratic Republic. The word 'Sovereign' emphasises that Indi
IndiaSecular,
upon any outside authority. It means that both internally and externallydependent
is no more

ne
sovereign. It's membership of the Commonwealth of Nations and that ofthdla is
Nations Organisation do not restrict her sovereignty. Critics say that India's memoed
of the Commonwealth of Nations is not compatible with her sovereign status. Rip
tus. But, it is
to be noted that India's membership of the Commonwealth of Nations does no
way restrict her sovereignty. India's membership of the Commonwealth is a self.imn
limitation. According to Mr. Ramaswamy. "it is a courtesy arrangement devoid a
constitutional significance". Explaining the true position of India in the Common
on 10th May, 1949, the then Prime Minister Jawahar Lal Nehru said "we took a nle
long ago to achieve Purna Swaraj. We have achieved 1t. Does a nation lo0se ite
independence by an alliance with another country? Alliance normally means Jtual
commitments. The free associations of Sovereign Commonwealth Nations does
not
involve such commitments. It is well known that it is open to any member nation
to po
oui of the Commonwealth if it chooses... It must be remembered that
. .

the
Commonwealth is not a super-State in any sense of the term. We have agreed to consider
the
kingas symbolic head of this free association. But the king has no functions attached
to that in the Commonwealth. So far the Constitution of India is concerned, the
no place and we shall owe no allegiance to him."
king has

The term Socialist' was inserted in the Preamble by the Constitution 42nd
Amendment Act, 1976. This concept was already implicit in the Constitution. The
amendment merely spells out clearly this concept in the Preamble. The word 'Socialisn
is used in democratic as well as socialistic Constitutions. It has no definite meaning. In
general, however, the word means some form of ownership of the means of production
and distribution by the State. The degree of State control will determine whether it is a
democratic State or socialistic State. India has, however, chosen its own brand of
socialism e.g., mixed economy.3
The term 'Secularism' means a State which has no religion of its own as recognised
religion of State. It treats all religions equally. In a secular State the State regulates the
relation between man and man. It is not concerned with the relation of man with God.
The term 'democratic' indicates that the Constitutiol. nas established a form of
Government which gets its authority from the will of the people. The rulers are elected by
the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are
essential characteristics of a democracy are declared in the Preamble of the Constitution as
the very objectives of the Constitution. The Preamble to the Constitution declares that
the Constituriun of India is adopted and enacted by the people of India and they are the
ultimate master of the Republic. Thus the real power is in hands of the people of India,
both in the Union and in ihe States. The term Republic' signifies that there shall be an
elected head of the State who will be the chief executive head. The President of India,
unlike the British King, is not a hereditary monarch but an elected person cn09
limited period. It is an essential ingredient of a Republic.
2.
Parlianientary
form
form of Government-The Constitution of India establishee
the
parliamentary of Governmentboth at In this respect
the Cenue and the States.

1. Added by the 42nd Amendment Act, 1976.

2. lbid.
3, Constituent Assembly Debates, Vol. VII, pp. 494-95.
 SALIENT FEATURES OF THE INDIAN CONSTITUTION
CHAP 3 25
makers ofthe Constitution have followed the British model in toto. The reason for this is
a c c u s t o m e d to this
were type of Government. The essence of the Parliamentary
that we is its
its responsibility to the Legislature. The President is the
overnment
form
of
stitutional head of the State. The real executive power is vested in the Council of
ead is the Prime Minister. The Council of Ministers is collectively
isters whose head
nansible to the Lower House, i.e.. Lok Sabha. The members of the Lower House are
res
elected rectly by the people on the basis of adult franchise normally for five years. The
ition is the same in the States. This Government is, therefore, called a responsible
Government. On the other hand, the American Constitution establishes a Presidential
based on the principle of separation of powers. The President is the
tNDe of Government
al executive; elected directly by the people for 4 years. All executive powers are vested
not responsible to the Lower House, i.e., the Congress. The members of
in him. He is
members of the Legislature. They are appointed by the President and
his Cabinet are not
therefore, responsible to him.
Parliamentary v. Presidential System.--A debate has been going on in the country
or should be replaced with
whether the present parliamentary system should be continued
elected directly by the people for a fixed
the presidential system under which the President,
term, will function as the nation's executive unhampered by the legislature in taking
administrative decisions. He will also have the distinct advantages
of choosing his
ministerial team from among the best talent, available in the country without being
Those who favour the
subjected to the pulls and pressures of elected representatives. the
presidential form of government claim that it has the following advantage: First,
chief executive in a presidential system is relatively free from sectional and party disputes.
and President can devote
His term is fixed and thus it ensures stability of the government
he is free to choose his team
his time for the development of the country.' Secondly,
His choice is rot restricted
of ministers from the best talent available within the country.
to elected representatives as is the case in parliamentary system.
Thirdly, it discourages
the members of a political
the disease of defections and maintains discipline among
party.
retention of the present parliamentary form
On the other hand, those who favour the
over the presidential form of
of government claim that it has the following advantages
The government is subjected to
gOvernments : First, it is a responsible government.
its achievements and failures. The ministers are
security in the legislature as regards
the Prime Minister who enjoys 2/3 majority in
accountable to the legislature. Secondly,
President in the United States. Thirdly, there
Parliament is much more powerful than the
Minister to choose the best talent from outside for
his
IS
nothing to prevent the Prime either House of Parliament, and fourthly, the
or nominated to
cabinet and get them electedremoved
disease of defection can be by appropriate legislation.
that the framers of the Constitution preferred
At the it has to be made clear
outset
the system was
of government mainly for two reasons-(1))
the parliamentary system
were well acquainted with it, (2) it provides
for
already in existence in India and people
accountability of ministers to the Legislature.
has been
However, the success of Parliamentary form of Government in India
cohesiveness and
marred by multiplicity of political parties, evil of defection, lack of issues,
illiteracy of voters, national issues versus Local
leadership in National Parties,
criminalisation of politics.
growth of regional parties,

MARGAO-G0A
I. Bowie and Friedrich-Studies in Federalism, p. 63.
K-I/ 403 601

AR
 CONSTITUTIONAL LAW OF INDIA
CHAP.3
3. Unique blend of rigidity and flexibility.-t has been the nature of h
e
amending process itself in federations which had led political scientists to classify ederal
Constitution as rigid.A rigid Constitution is one which recquires a special method
bf
amendment of any of its provisions while in flexible Constitution any of its Drovicin
can be amended by ordinary legisiative proces) A written Constitution is generallysions
so
he rigid 1he Indian Constitution, though written. is sufficiently flexiblet isonlu
few provisions of the Constitution that require the consent of halfof the
Legislatures( The rest of the provisions can be amended by a special majority ofe
Parliament. ((he fact that the Indian Constitution has been amended 100 times during the
eriod of ast 66 years of its working disapproves the view taken by
had characterized our Constitution as rigid for the following
Sir Ivor Jenning ho
f amendment is complicated and
reasons: (a) that the process
difficult:b) that matters which should have been left to
ordinary legislation having been incorporated into the Constitution no
change in these
matters is possible without undergoing the process of amendment.

4. Fundamental Rights.The incorporation of a formal declaration of

Fundamental Rights in Part IIl of the Constitution is deemed to be a
feature of a democratic State!These rights áre distinguishing
cannot make a law which takes
prohibitions against the State. The State
away or abridges any of the rights of the citizens
guaranteed in the Part III of the Constitution If it passes such a law it may be declared
unconstitutional by the courts. But mere decBaration of certain
be of no use if there is no machinery for their
Fundamental Rights will
enforcement! Our Constitution has.
therefore. conferred on the Supreme Court the power to grant most effective
remedies in
the nature of writs Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari
whenever these rights are violated.lt must, however, be
clearly understood that
Fundamental Rights are not absolute rights. They are subject to certain
restrictions, Thus
Our Constitution tries to strike a balance between the individual liberty and the söcial
interest (The idea of incorporating a Bill of Rights has been taken from the Constitution
of the United States But the guarantee of individual rights in our Constitution has been
very carefully balanced with the need for security of the Stateitself
5. Directive Principles of State Policy.-The Directive Principles of State Policy
contained in Part IV of the Constitution set out the aims and objectives to be taken up by
the States in the governance of the country. Unlike the Fundamental Rights, these rig
are not justiciable. If the State is unable to
implement any provisions of Part IV. no
action can be brought against the State in a law court For this want of enforceability
there has been much criticism. But the eriticism is not justified. Though by their very
nature they are not justiciable in the court of law, yet the State authorities have to answer
for them to the electorate at the time of election.The idea of a welfare State envisaged in
Our Constitution can
only be achieved if the States endeavour to implement them with a
high sense of moral duty.
6 . A Federation with strong centralising tendency.-{The most remarkable
feature of the Indian Constitution is that being a federal Constitution it acquires a unitary
character during the time of emergency(During the proclamation of emergency the normal
distribulion of powers between the Céntre and the States undergoes a vital change) The
Union Parliament is empowered to legislate on any subjects mentioned in the State List
The Central Government is empowered to give directions to States as to the manner in
which it should exercise its executive powers. h e financial arrangements between tne

Fadaral Governmcnt n 709

CHAP. 3 SALIENT FEATURES OF THE INDIAN CONSTITUTION 27
atre and States can also be altered by the Union Government. Thus during the
nroclamationm of emergeney all powers are centralised in the Union Government and
Comstitution acquires a unitary characterlThis combination of federal and unitary system
unique feature of the Indian Constitution. This feature of the Constitution can be better
understood in the historical background upon which the federalism has been introduced in
ladia and also in the light of the experience in other federal countries.)

7. Adult Suffrage.-The old system of communal electorates has been

abolished and the unitorm adult suffrage system hus been adopted.Under the Indian
Constitution every man and woman above 18 years of age has been given the right to
elect representatives for the legislature, The adoption of the universal Adult Suffrage
(Article 326) without any gualification either of sex, property, taxation, or the like is a
bold experiment in India having regard to the vast extent of the country and its
with illiteracy. This suffrage is the
population. an overwhelming wider than all
democratic countries which have given right to vote to their people In spite of many
difficulties. this bold experiment has been erowned with success. This is evident with the
increased number of voters on the electoral rolls in the general elections.

8. An Independent Judiciary.-Mere enumeration of a number of fundamental

nigh:s in a Constitution without any provision for their proper safeguards will not serve
any useful purpose. Indeed, the very existence of a right depends upon the remedy for its
enforcement. Ünless there is remedy there is no right, goes a famous maxim. For this
purpose an independent and impartial judiciary with a power of
judicial review has been
established under the Constitution ofIndia. It is the custodian of the rights of citizens.
Besides. in a federal Constitution it plays another significant role of determining the
limits of power of the Centre and States
9. A Secular State.-A Secular State has no religion of its own as recognised
religion of State. It treats allreligions equally.The Preamble declares the resolve of the
people of India to secure to all is citizens "liberty of..belief, faith and worship".}
Articles 25 to 28 of the Constitution give concrete shape to this concept of secularism. It
uarantees to every person the freedom of conscience and the right to profess, practise and
State only regulates the relationship between
propagate religion./In a secular State, the
man and man. It is not concerned with the relationship of man with God One may
his own conscience. However it is to be noted
Worship God according to the dictates of
that the frecdom of religion is not an absolute freedom, but subject to the regulatory
power of the State. In the name of religion nothing can be done which is against public
the public. Secularism is also subject to 'democratic
order, morality and health of
socialism'. Religious freedom cannot, therefore, be used to practise economic
exploitation. The right to acquire, own and administer property by religious institutions
1S subject to the regulatory power of the State.

1 0 . Single Citizenship.fThough the Constitution of India is federal and provides

for dual polity i.e., Centre and States, but it provides for a single citizenship for the
whole of India The American Constjtution provides for dual citizenship, i.e. the citizen
of America and a State cit.zenship) On the other hand, there is only one citizenship in
India, i.e.. the citizenship of India. There is no State citizenship. Every Indian is the
citizen of India and enjoys the same rignts of citizenship no matter in what State he

resides.

1. The Constitution (6lst Amendment) Act, 1989,

 28
CONSTITUTIONAL LAW OF INDIA
[CHAP.3
Duties.£The Constitution (42nd Amendment) Act,
1976
1 1 . Fundamental has
introduced a Code of ten "Fundamental Duties" for citizens The Fundamental Duties+are
to every citizen thar while the Constitution has
indeed to serve as a constant reminder
Fundamental Rights, it also requires the citizens to
specifically conferred on them certain behaviours.
observe certain basic norms of democratic conduct and democratic
12. Judicial Review.Judicial Review is the power of courts to pronounce unon
the constitutionality of legislative acts which fall within their normal jurisdiction to
nforce and the power to refuse to enforce such as they find to be unconstitutional and
henee void. "Judicial Review" said Khanna, J., in the Fundamental Rights case2 has
thus become an integral part of our Constitutional System and a power has been vested
in the High Courts and the Supreme Court to decide about the constitutional validity of
he provisions of statutes. If the provisions of the statutes are found to be violative
of any of the articles of the Constitution which is the touchstone for the validity of all
laws the Supreme Court and the High Courts are empowered to strike down the said
provisions".

That power corrupts a man and absolute power corrupts absolutely which ultimatelvy
leads to tyranny, anarchy and chaos has been sufficiently established in course of
evolution of human history, and all round attempts have been made to erect institutional
limitations on its exercise. When Montesquieu gave his doctrine of
he was obviously moved by his desire to
separation of powers,
put a curb on absolute and uncontrollable power
in any one organ of the Government. A executive and a judicial power
legislature, an
comprehend the whole of what is meant and understood by Government. It is by
balancing each of these two powers against the other two that the efforts in human nature
owards tyranny can alone be checked and restrained and
any freedom preserved in the
Constitution.3
Judicial Review is thus the interposition of
well as the executive organs of the Government. The
judicial restraint on the legislative as
of limited Government and in the
concept has the origin in the theory
theory of two laws-an ordinary and supreme (i.e., the
Constitution). From the very assumption that there is a supreme law which constitutes
the foundation and source of other
that any
legislative authorities in the body polity, it proceeds
of the ordinary law-making bodies which
act
contravenes the provisions of the
supreme law must be void and there must be some organ which is to
possess the power
or
authority to pronounce such legislative acts void.*
The doctrine of judicial review was for the
first time propounded by the Supreme
Court of America. Originally, the United
States Constitution did not contain an
provision for judicial review. The power of judicial review was, however, assumedexpress
by the
Supreme Court of America in the historic case of Marbury v.
case were as follows The
: Madison. The facts of
Federalists had lost the election of 1800, but before leaving the
office they had succeeded in the
of
creating several new judicial posts. Among these were 44
justices peace, to which the retiring Federalists President John Adams
two Federalists. The appointment of appointed forty
commissions were confirmed by the Senate and they
were signed and sealed, but Adam's
Secretary of State, John Marshall, failed to deliver
certain of them. When the new President, Thomas
Jeffersaon, assumed office, he instruct
. E.S. Crown-Essay on the Judicial Review in Encyclopaedia of Social Sciences, Vol. VIII. p. 451.
2. Kesavananda Bharati v. State of Kerala, AIR 1973 SC
1461.
3. Letters by James Adams to Richard Henry.
Basu's Commentaries on Constitution of India. Vol. 1.
5. 2L Ed. 60.
CHAP. 3 SALIENT FEATURES OF THE INDIAN CONSTITUTION 29
. Socretary of State, James Madison not to deliver seventeen of these commissions
his
including one for William Marbury. Marbury, filed a petition in the Supreme Court for
the issue of a writ of mandamus to Secretary Madison ordering him to deliver the
ommissions. He relied on Section 31 of the Judiciary Act of 1789 which provided: "The
Supreme Court shall have the power to issue.... writs of mandamus, in cases
waTanted by the principles and usages of law, to.....persons holding office, under the
authority of the United States". The Court, speaking through Marshall, who had now
hcome Chief Justice, held that Section 13 of the Judiciary Act was repugnant to Article
l. Section 2 of the Constitution inasmuch as the Constitution itself limited the
Supreme Court's original jurisdiction to cases "affecting ambassadors, other public
ministers and consuls, and those to which a State is party". Since Marbury fell in none of
these categories the court had no jurisdiction in his case. The observations of Marshall,
C.J.. in that case are pertinent to note

The Constitution is either superior paramount law unchangeable by ordinary

means or it is on a level with ordinary legislative Acts, and like other Acts is
alterable when the legislature shall please to alter it. .Certainly, all those
who framed written Constitutions contemplate them as iorming the fundamental
and paramount law of the nation and, consequentiy, the theory of every such
Govermment must be that an Act of the legislature repugnant to the Constitution is
void. And further, "It is emphatically the province and duty of the Judicial
department to say what the law is..."
In the Indian Constitution there is an express provision for judicial review, and in
this sense it is on a more solid footing than it is in America. In The State of Madras v.
V.G. Row, Patanjali Sastri, C.J., observed, "Our Constitution contains express
provisions for judicial review of legislation as to its conformity with the Constitution,
unlike in America where the Supreme Court has assumed extensive powers of reviewing
legislative acts under cover of the widely interpreted due process' clause in the Fifth and
Fourteenth Amendments. If then, the courts in this country face up to such important and
none too easy task, it is not out of any desire to tilt at legislative authority and a
crusader's spirit, but in discharge of duty plainly laid upon them by the Constitution.
This is specially true as regards the fundamental rights as to which the Court has been
assigned the role of sentinel on the qui vive."
But even in the absence of the provision for judicial review, the courts would have
been able to invalidate a law which contravened any const:utional provision, for, such
power of judicial review follows from the very nature o' constitutional law. In A.K.
Gopalan v State of Madras.2 Kania, C.J., pointed ov. that it was only by way of
abundant caution that the framers of our Constitution inse rted the specific provisions in
Article 13. He observed : "In India, it is the Constitution that is supreme and that a
statute law to be valid, must be in all conformity with the constitutional requirements and
it is for the judiciary to decide whether any enactment is constitutional or not"
But while the basis of judicial review of legislative acts is far more secure under our
Constitution its potentialities are much more limited as compared to that in U.S.A. This
is due to the detailed provisions of the Indian Constitution and the easy method of its
amendment in contradistinction to the American Constitution's vague and general
phraseology and the rigid method of its amendment. Thus, under the power of judicial
review the highest Court of te Nation can test all pre-Constitution and post-Constitution

AiR 195 SC 196.

AIR 1950 SC 27.
30 CONSTITUTIONAL LAWOF INDIA [CHAP. 3
or future laws, and declare them unconstitutional in case they contravene any of the
provisions of Part II of the Constitution.
In Kesavananda Bharati's case! it has been held that Judicial Review is the 'basic
feaures' of the Indian Constitution and, therefore, it "cannotbe damaged or destroyed by
amending the Constitution under Article 368 of the Constitution".
Again, in L Chandra Kumar v. Union of India,2 the Supreme Court has held that
the power of judicial review of legislative action as vested in the High Court under Article
226 and in the Supreme Court under Article 32 is part of the basic structure of the
Constitution and can not be ousted or excluded even by the constituticnal amendment.3
No judicial review in policy matters.-In policy matters, the judicial review is
justified only if the policy is arbitrary, unfair or violative of fundamental rights, The
Courts must be loathe to venture into an evaluation of State policy which must be given
a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the
electorate has been quick to make the Government aware of its folly.*

*** * *

. Kesavananda Bharti v. State of Kerala, AIR 1973 sC 1461.

2. AIR 1997 SC 1125
3 Also See Supreme Court Advocales-on-Record Association v. Union of India, (2015) AIR SCW 5457:
I laion of India v. S. K. Sharma, AIR 2015SC 246; Madras Bar Association v. Union of India. AIR

20015,SC 1571.
Kerala Bur Hotels Association v. Statc of Kernla. AlR 2016 SC 163 at p. 181; Census Commisioner v.
(2015) 2 SCC 796 referred
to.
R. Krishnumurthy.