In this class we are going to talk about various features of Indian Constitution that makes it stand apart from the rest of the world. Below is a comprehensive overview of its main features, structure, and criticisms.
1. Lengthiest Written Constitution
The Constitution of India is the longest written constitution in the world. It originally had 395 articles in 22 parts, with 8 schedules, and has undergone many amendments, making it even larger. Several factors contribute to its length:
- Diversity of Indian Population: India’s vast range of cultures, languages, religions, and socio-economic conditions required detailed constitutional provisions to address the needs of various communities across different regions.
- Elaborate Provisions: The Indian Constitution is highly specific, leaving little room for broad interpretations. It covers governance, rights, and responsibilities in exhaustive detail.
- Presence of Legal Practitioners in Constituent Assembly: Many members of the Constituent Assembly were prominent lawyers, leading to a constitution with precise and comprehensive legal frameworks.
- Drawn from Various Sources: The Constitution borrowed features from multiple constitutions worldwide, e.g., the Government of India Act 1935, U.S. Constitution (Fundamental Rights), Irish Constitution (Directive Principles), etc.
- Organic vs. Borrowed Principles: India, as a newly independent and diverse nation, adopted tried-and-tested elements from other countries rather than relying solely on organic evolution, further adding to its length.
2. Deriving from Various Sources
When India set out to frame its Constitution, it studied numerous other constitutions, selecting and customizing the best practices to suit its socio-political and economic conditions. Major inspirations include:
Structural Framework: Government of India Act, 1935
- Federal Structure & Division of Powers: Many federal features (central and provincial legislatures, distribution of legislative powers between Union and states) come from the 1935 Act.
Philosophical Inspirations
- Fundamental Rights (U.S. Constitution): Concepts like freedom of speech and equality before the law were inspired by the U.S. Bill of Rights.
- Directive Principles of State Policy (Irish Constitution): Non-enforceable guidelines aimed at ensuring social justice.
- Fundamental Duties (USSR): Encouraging civic responsibilities among citizens.
Other Sources of Inspiration
- British Constitution: Single citizenship, rule of law, and the parliamentary democracy model.
- American Constitution: Judicial review, impeachment process, and “due process” notions.
- Irish Constitution: Directive Principles of State Policy and the presidential election method.
- Canadian Constitution: Federalism with a strong center, residuary powers.
- French Constitution: Ideals of liberty, equality, and fraternity (enshrined in the Preamble).
- Australian Constitution: Concurrent list and free trade/commerce between states.
- South African Constitution: Amendment process, election to the Rajya Sabha.
- German Constitution: Emergency provisions, concept of basic structure doctrine.
3. Written Constitution
A written constitution typically reflects a federal arrangement with clearly defined divisions of power. Unlike the British Constitution, which is largely unwritten (based on conventions and precedents), both India and the U.S. have written constitutions providing a single authoritative document. Written constitutions tend to be more rigid, helping preserve fundamental rights and core governmental structures.
4. Rigidity and Flexibility
Constitutions can be rigid (difficult to amend) or flexible (easier to amend). The Indian Constitution is a blend of both:
- Flexible Provisions: Certain parts (like Articles 2 and 3) can be amended through ordinary legislative procedures.
- Difficult-to-Amend Provisions: Features affecting the All India Services or Centre-State powers require special majority and wider consensus.
- Non-Amendable Provisions (Basic Structure): The Supreme Court’s “basic structure doctrine” (Keshavananda Bharati case, 1973) shields essential features (e.g., rule of law, judicial independence) from amendment.
5. Federal Structure of Indian Polity
India’s Constitution incorporates both federal (decentralized) and unitary (centralized) elements, making it a “federation with a unitary bias.”
Federal Elements
- Two-Tier System: Bicameral legislature (Lok Sabha, Rajya Sabha) at the center, and separate legislatures in states.
- Written Constitution: A detailed document outlining distribution of powers.
- Rigidity: Certain amendments require ratification by states.
Unitary Elements
- All India Services: Centralized recruitment serving both Union and states.
- Emergency Provisions: The center can override states during crises.
- Single Constitution & Single Citizenship: Emphasizes unity over separate state constitutions or citizenships.
- Integrated Judiciary: One judicial hierarchy, topped by the Supreme Court.
- Centre Stronger Than States: Greater central powers in legislation and finance.
6. Integrated Judiciary
India has a single, integrated judicial system, comprising:
- Supreme Court (apex)
- High Courts (state level)
- District and Subordinate Courts (below High Courts)
All courts apply both central and state laws, ensuring uniform interpretation nationwide.
Indian Judiciary vs. U.S. Judiciary
- Integrated vs. Dual System: India has one judiciary for all laws; the U.S. has separate federal and state court systems.
- Due Process vs. Procedure Established by Law: The U.S. emphasizes due process; India primarily follows procedure established by law (though it has gradually incorporated due-process-like interpretations).
7. Relation Between Legislative, Executive, and Judiciary
India has three main branches—legislature, executive, judiciary—that are functionally distinct yet interdependent.
Legislature-Executive Relationship
- The executive is drawn from the legislature (Prime Minister and Council of Ministers). It is collectively responsible to the lower house (Lok Sabha), ensuring accountability and the possibility of dissolution if confidence is lost.
Judiciary’s Independence
- The judiciary is separate and independent, with power of judicial review to nullify unconstitutional laws/actions.
- This prevents the other branches from exceeding constitutional limits.
Separation of Powers vs. Checks and Balances
- India does not strictly follow the separation of powers; it adopts a system of checks and balances where branches can influence and oversee each other.
Indian vs. U.S. Model
- Legislature-Executive Relations: India (parliamentary) vs. U.S. (presidential) — in India, the executive is part of the legislature; in the U.S., they are separate and independently elected.
- Judicial Independence and Supremacy: Both systems uphold judicial independence; however, U.S. courts exercise stronger judicial supremacy, striking down not only laws but also executive actions more freely.
8. Parliamentary Sovereignty
In the UK, Parliament is sovereign and can make or unmake any law. In India, however, the Constitution is supreme, and Parliament’s powers are limited by constitutional provisions and the Basic Structure doctrine.
9. Independent Bodies
Several institutions in India function independently of the legislature, executive, and judiciary to maintain democratic checks and balances. Notable examples include:
- Comptroller and Auditor General (CAG): Audits government expenditures for accountability and reports to Parliament.
- Election Commission of India: Conducts free and fair elections at national and state levels.
- Finance Commission: Recommends distribution of tax revenues between Union and states.
- Union Public Service Commission (UPSC): Manages recruitment of civil servants through competitive examinations.
10. Three-Tier Governance
The three-tier structure (Union, State, Panchayats) was introduced by the 73rd Constitutional Amendment Act (1992). It decentralized power to local bodies, establishing Panchayati Raj institutions at village, block, and district levels.
- Part IX & Part IXA: Added to the Constitution, covering Panchayats and Municipalities.
- Legislative & Executive Powers: Local governance bodies were given authorities for grassroots-level decision-making.
11. Constitutional Status of Co-operative Societies
The 97th Constitutional Amendment Act (2011) granted constitutional status to co-operative societies, emphasizing their voluntary formation and democratic management. Key changes:
- Addition to Fundamental Rights: Article 19(1)(c) now includes the right to form co-operative societies.
- New Directive Principle (Article 43B): Promotes voluntary and democratic functioning of co-operatives.
- Part IXB: Deals with incorporation, regulation, and functioning of co-operative societies.
12. Parliamentary Form of Government
India follows the Parliamentary form, often called the Westminster Model, Cabinet Government, or Responsible Government. Borrowed from the UK, it features a nominal head of state (President) and a real head of government (Prime Minister).
Constitutional Provisions
- Articles 74 & 75: Establish parliamentary government at the center.
- Articles 163 & 164: Extend the same model to the states.
Other countries like Canada, Japan, and India follow the parliamentary system, whereas nations like Sri Lanka, Russia, and Brazil follow presidential models.
Ivor Jennings and Cabinet Government
- Ivor Jennings called it “Cabinet Government,” highlighting that real power rests with the Council of Ministers, not the nominal head of state.
- This system is also responsible government, as the executive can be removed by the legislature if it loses confidence.
Key Features of the Parliamentary Government |
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- Dual Executive: The nominal head (President/Governor) and the real head (Prime Minister/Chief Minister).
- Majority Party Rule: The majority party/coalition in the lower house forms the government.
- Dissolution of the Lower House: The Lok Sabha (lower house) can be dissolved; the Rajya Sabha (upper house) is permanent.
- Collective Responsibility: The Council of Ministers is collectively responsible to the legislature.
- Leadership Role of the Prime Minister: The PM is the leader of the Council of Ministers, Parliament (majority party), and the nation’s government.
- No Fixed Tenure: The government remains as long as it enjoys the confidence of the lower house.
- Secrecy: Cabinet meetings and discussions are confidential; ministers take an oath of secrecy.
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Features of the Presidential Model
- Concentrated Political Power: The president is both head of state and head of government.
- Dual Role of President: In the U.S., the president oversees the executive branch and enforces laws.
- No Legislative Accountability: The president and secretaries are not responsible to the legislature.
- Fixed Tenure: The president serves a set term (e.g., 4 years in the U.S.).
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Merits and Demerits of the Parliamentary System
Merits
- Harmony between Legislature and Executive: Ministers are from the legislature, promoting cooperation.
- Responsible Government: The executive can be dismissed if it loses legislative support.
- Representative Executive: Cabinet consists of elected representatives (unlike appointed secretaries in a presidential system).
- Alternative Government: An opposition is always ready to take over if the ruling party loses confidence.
- Prevents Despotism: Collective responsibility disperses power among several ministers.
Demerits
- Against Strict Separation of Powers: Executive and legislature overlap, contrary to Montesquieu’s doctrine.
- Unstable Executive: Frequent no-confidence motions can topple governments.
- Lack of Meritocracy: Ministers may be chosen for political reasons rather than expertise.
- Cabinet Dictatorship: A large majority in the legislature may let the cabinet dominate without sufficient checks.
Why the Parliamentary System Is Good for India
- Need for Coordination: Early post-independence India required strong cooperation between branches to address socio-political challenges.
- Familiarity: The British parliamentary model was already well-understood by leaders and citizens.
- Accountability Priority: The Constitution’s framers valued an accountable government over rigid stability.
- Diversity Representation: Enables multiple groups to participate, reflecting India’s multicultural fabric.
Difference Between Indian and UK Model
- Monarchical Democracy vs. Democratic Republic: UK has a monarch; India has an elected president.
- PM’s Membership in Parliament: In India, PM can be from either house; in the UK, PM must come from the House of Commons.
- Parliamentary Sovereignty vs. Limited Powers: UK Parliament is supreme; Indian Parliament is limited by the Constitution.
- Individual vs. Collective Responsibility: UK ministers may be individually responsible; India follows collective responsibility.
- Shadow Cabinet: Exists in the UK, not in India.
13. Criticism of the Indian Constitution
- Mid-20th Century Reflection: Critics say it addresses issues specific to its era (post-independence) and may not fully reflect modern needs.
- Departure from Gandhian Principles: Emphasis on centralized power rather than Gandhi’s “Gram Swaraj.”
- Lack of a Single Ideology: It combines multiple philosophies, sometimes leading to incoherence.
- Not Organically Evolved: It is said to be a “borrowed patchwork” rather than an organic progression of Indian traditions.
- Complexity: Its length and detail make it less accessible to ordinary citizens, favoring legal professionals.
- “Carbon Copy” of the Government of India Act, 1935: Many provisions remain from this colonial-era act, fueling critiques of limited originality.