Week 3: Salient Features of the Constitution

Salient Features and Evolution of the Indian Constitution

The Indian Constitution is unique in its structure and spirit, despite borrowing elements from various global constitutions. A defining aspect of the Constitution is its dynamic character, evidenced by a series of substantive amendments that have restructured its original framework.

Among the most transformative are:

• 7th Amendment (1956), which reorganized states on linguistic lines
• 42nd Amendment (1976), often referred to as the “Mini-Constitution” for introducing sweeping changes across the constitutional spectrum
• 44th Amendment (1978), which sought to restore democratic balance post-Emergency.
• 73rd and 74th Amendments ushered in constitutional status for Panchayati Raj and urban local bodies respectively, deepening grassroots democracy
• 97th Amendment strengthened cooperative societies
• 101st Amendment introduced the Goods and Services Tax (GST)

However, the Supreme Court’s judgment in Kesavananda Bharati (1973) established the ‘basic structure’ doctrine, restricting Parliament’s power under Article 368 to amend core constitutional principles. This balance of flexibility and foundational integrity defines the enduring character of the Indian Constitution.

Lengthiest Written Constitution

• Most detailed constitution globally.
• Originally: 395 Articles, 22 Parts, 8 Schedules (1949).
• Currently: ~470 Articles, 25 Parts, 12 Schedules.
• Reasons: Diversity, GOI Act 1935, dual polity under one Constitution, legalistic approach.

Drawn from Various Sources

• Structural part: Government of India Act, 1935.
• Fundamental Rights: U.S. Constitution.
• DPSPs: Irish Constitution.
• Parliamentary system: British Constitution.
• Other features from Canada, USSR, France, Australia, etc.

Blend of Rigidity and Flexibility

• Three types of amendments (Article 368):
• Simple majority
• Special majority
• Special majority + state ratification
• Ensures both adaptability and stability.

Federal System with Unitary Bias

• Features of federation: Dual polity, division of powers, written constitution.
• Unitary features: Strong Centre, single Constitution, integrated judiciary.
• Term “Union of States” implies indestructibility of federation.

Parliamentary Form of Government

• Based on British Westminster model.
• Dual executive: nominal (President) and real (PM).
• Collective responsibility, majority rule, Prime Minister’s leadership.
• Implemented at both Union and State levels.

Synthesis of Parliamentary Sovereignty and Judicial Supremacy

• Parliament can amend most parts of the Constitution.
• Judiciary has power of judicial review.
• Kesavananda Bharati case established Basic Structure Doctrine.

Integrated and Independent Judiciary

• Unified three-tier system: Supreme Court, High Courts, Subordinate Courts.
• Ensures enforcement of both Union and State laws.
• Constitutional safeguards ensure judicial independence.

Fundamental Rights (Part III)

• Six rights: Equality, Freedom, Protection from exploitation, Religion, Culture & Education, Remedies.
• Justiciable and enforceable.
• Subject to reasonable restrictions and suspension during Emergency (except Articles 20 & 21).

Directive Principles of State Policy (Part IV)

• Non-justiciable but fundamental to governance.
• Aim: Social and economic democracy.
• Categories: Socialistic, Gandhian, Liberal-Intellectual.
• Balanced with Fundamental Rights (Minerva Mills case).

Fundamental Duties (Part IV-A)

• Added by 42nd Amendment (1976); 11 duties total.
• Promote patriotism, harmony, environmental protection, etc.
• Non-justiciable, moral obligation of citizens.

Secular State

• Equal respect for all religions (positive secularism).
• Term “Secular” added to Preamble by 42nd Amendment.
• Provisions: Articles 14, 15, 25–30, 44.
• No state religion; freedom of belief and worship guaranteed.

Universal Adult Franchise

• Voting right to every citizen aged 18+.
• Introduced in 1950; age lowered by 61st Amendment (1988).
• Enhances democratic participation and equality.

Single Citizenship

• One citizenship for entire country.
• Promotes national unity.
• Uniform rights and duties across states.

Independent Constitutional Bodies

• Election Commission: Conducts elections.
• CAG: Audits government finances.
• UPSC/SPSC: Recruitment to civil services.
• Ensured autonomy via constitutional safeguards.

Emergency Provisions

• National Emergency (Art. 352)
• State Emergency / President’s Rule (Art. 356/365)
• Financial Emergency (Art. 360)
• Convert federal system to unitary during crises.

Three-tier Government

• 73rd & 74th Amendments (1992) added Panchayats (Part IX) and Municipalities (Part IX-A).
• Created a constitutionally recognized third tier of governance.
• Promotes decentralization and grassroots democracy.

Co-operative Societies

• 97th Amendment (2011):
• Right to form co-ops (Article 19)
• New DPSP (Art. 43B)
• Part IX-B added for regulation.
• Aims for democratic, autonomous, professional co-ops.

Criticism of the Indian Constitution

1.     Borrowed Constitution

·       Critics: Lacks originality; “bag of borrowings”.

·       Called a “patchwork” of global constitutions.

·       Ambedkar’s rebuttal: Borrowing with adaptation is pragmatic; fundamentals are universal.

2.     Carbon Copy of the 1935 Act

·       Many provisions (federal structure, emergency powers, judiciary) taken from the Government of India Act, 1935.

·       Criticized as “amended version” of colonial law.

·       Ambedkar: Borrowed only administrative details; no shame in adopting useful ideas.

3.     Un-Indian or Anti-Indian

·       Constitution allegedly ignores Indian traditions, values, and ethos.

·       K. Hanumanthaiya: Wanted “Veena or Sitar,” got “English band”.

·       Critics saw it as excessive Western imitation.

4.     Un-Gandhian Constitution

·       Ignores Gandhian ideals: Gram Swaraj, village panchayats.

·       Seen as too centralised and bureaucratic.

·       Prakasam & others blamed Ambedkar’s ideological distance from Gandhi.

5.     Elephantine Size

·       Lengthiest Constitution globally.

·       Criticized as bulky and too detailed.

·       H.V. Kamath: Called it an “elephantine” document.

6.     Paradise of the Lawyers

·       Highly legalistic; complex language and structure.

·       Critics: Encourages litigation; inaccessible to common people.

·       Sir Ivor Jennings: Constitution is a “lawyer’s paradise”.

7.     Lack of Sociopolitical Soul

·       P.R. Deshmukh: Constitution reads like a legal manual, not a vibrant political text.

·       Excessive “padding” and legalese dilute its emotional appeal.

 Preamble of the Indian Constitution

Definition: Introduction or preface to the Constitution; summarises its philosophy and objectives.

• Origin:
• Inspired by the American Constitution, the first to adopt a preamble.
• Based on Objectives Resolution drafted by Jawaharlal Nehru (1946), adopted by the Constituent Assembly.
• Described as:
• “Identity card of the Constitution” – N.A. Palkhivala.
• Content:
• Declares India as a Sovereign, Socialist, Secular, Democratic Republic.
• Aims to secure Justice, Liberty, Equality, and Fraternity to all citizens.
• Amendment:
• 42nd Constitutional Amendment Act (1976) added:
• Socialist
• Secular
• Integrity
• Significance:
• Reflects constitutional values and aspirations.
• Used as a guide in judicial interpretation.
• Holds moral and political weight, though not legally enforceable.

 

“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 twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.

 Significance of the Preamble

·       Philosophical Essence:

• Embodies political, moral, and spiritual values of the Constitution.
• Reflects the vision of the Constituent Assembly.

·        Statements by Key Framers:

• Alladi Krishnaswami Iyer: “It expresses what we had dreamt so long.”
• K.M. Munshi: Called it the "horoscope of our sovereign democratic republic".
• Thakur Das Bhargava: Described it as the soul, key, and jewel of the Constitution.
• Scholarly Recognition:
• Sir Ernest Barker (British political scientist): Called it the "key-note to the Constitution" and quoted it in his book Principles of Social and Political Theory.
• Judicial Viewpoint:
• M. Hidayatullah (former CJI): Compared it to the U.S. Declaration of Independence, yet considered it more—a solemn resolve that only a revolution can alter.
• Functional Importance:
• Serves as a guide to interpretation of the Constitution.
• Acts as a moral and political compass for democratic governance.