The Living Parchment

The Indian Constitution is the lengthiest of all the written constitutions of the world. Originally (1949), it contained a Preamble, 395 Articles (divided into 22 Parts), and 8 Schedules. After numerous amendments, it currently has a Preamble, about 470 Articles (divided into 25 Parts), and 12 Schedules.

Reasons for its Size and Complexity (Elephantine Size):

• Geographical Vastness and Diversity: India's immense size and extraordinary diversity necessitated detailed provisions.
• Historical Factors: Influence of the Government of India Act, 1935, a bulky document itself.
• Single Constitution for Centre and States: Unlike some federations, India has one constitution for both Union and States.
• Dominance of Legal Luminaries in Constituent Assembly: Lawyers preferred spelling out provisions to avoid ambiguity.
• Inclusion of Administrative Details: Detailed provisions regarding administration (e.g., All-India Services, Election Commission) to ensure uniformity.
• Provisions for Weaker Sections: Detailed clauses for SCs, STs, OBCs, and minorities for their protection and upliftment.
• Incorporation of Fundamental Rights and Directive Principles: Comprehensive chapters added significantly to its length.
• Provisions for Emergency Situations: Detailed emergency provisions were included.
• Lessons from Other Constitutions: Framers incorporated and adapted best features from various constitutions.
• Aspiration for Social Revolution: Granville Austin argues the Constitution aimed at social revolution, requiring detailed provisions.

The Indian Constitution is often described as having been drawn from various sources, borrowing features from the constitutions of many countries as well as from the Government of India Act, 1935. Dr. B.R. Ambedkar stated that the Indian Constitution was framed after "ransacking all the known Constitutions of the World."

Major Sources (Examples):

A constitution is rigid if it requires a special procedure for its amendment (e.g., US Constitution). It is flexible if it can be amended in the same manner as ordinary laws (e.g., British Constitution). The Indian Constitution is a synthesis of both rigidity and flexibility.

Procedures for Amendment:

Rationale for this Blend: Flexibility allows the Constitution to adapt to changing needs and circumstances without resorting to revolutions. Rigidity protects the fundamental principles, federal structure, and rights of states from arbitrary changes by the central government. Dr. Ambedkar called it a flexible federation.

The Indian Constitution establishes a federal system of government but with several non-federal (or unitary) features, leading to descriptions like "quasi-federal."

India opted for the British parliamentary system of government rather than the American presidential system.

Features of Parliamentary Government in India:

• Nominal and Real Executives: President (nominal), PM & Council of Ministers (real).
• Majority Party Rule: Party/coalition with majority forms government.
• Collective Responsibility: Council of Ministers collectively responsible to Lok Sabha (Art 75(3)).
• Political Homogeneity: Ministers usually from the same party/ideology.
• Dual Membership: Ministers are members of both legislature and executive.
• Leadership of the Prime Minister/Chief Minister.
• Dissolution of the Lower House: Lok Sabha can be dissolved by President on PM's advice.
• Secrecy: Ministers operate on principle of secrecy.

Reasons for adoption in India:

• Familiarity with the System: British rule introduced elements, making Indians familiar.
• Preference for More Responsibility: Framers preferred accountability over stability (as in presidential system).
• Need to Avoid Executive-Legislature Conflicts: Promotes harmony between branches.
• Nature of Indian Society (Heterogeneous): Better suited to accommodate diverse groups through representation.

Distinction from British model:

• Republic vs. Monarchy: India has an elected head of state (President); Britain has a hereditary Monarch.
• Parliamentary Sovereignty vs. Constitutional Supremacy: British Parliament is legally sovereign; Indian Parliament's powers are limited by written Constitution, federalism, FRs, and judicial review (Basic Structure).
• Prime Minister's Membership: In Britain, PM must be a member of the Lower House; in India, PM can be a member of either Lok Sabha or Rajya Sabha.

The Indian Constitution strikes a balance between British principle of Parliamentary Sovereignty and American principle of Judicial Supremacy.

Single hierarchical system of courts:

Unlike USA where there are separate federal and state court systems, India has an integrated judicial system. The Supreme Court stands at the apex, with High Courts at the state level, and a hierarchy of subordinate courts below them. This single system enforces both central laws and state laws.

Provisions ensuring judicial independence:

• Security of Tenure: Judges can only be removed by special parliamentary procedure on grounds of proved misbehaviour or incapacity.
• Fixed Service Conditions: Salaries, allowances cannot be varied to their disadvantage after appointment.
• Expenses Charged on Consolidated Fund of India (CFI): Non-votable by Parliament, ensuring financial autonomy.
• Conduct of Judges Cannot be Discussed: Except when an impeachment motion is under consideration.
• Power to Punish for its Contempt: Protects authority, dignity, and independence of courts.
• Separation of Judiciary from Executive (Article 50): Prevents executive interference.
• Ban on Practice after Retirement (for SC Judges): Ensures impartiality during tenure.
• Appointment of Judges: System aims to minimize executive interference.

Part III of the Constitution (Articles 12 to 35) guarantees six categories of Fundamental Rights (originally seven, Right to Property was removed as FR by 44th Amendment).

Categories:

• Right to Equality (Articles 14–18)
• Right to Freedom (Articles 19–22)
• Right against Exploitation (Articles 23–24)
• Right to Freedom of Religion (Articles 25–28)
• Cultural and Educational Rights (Articles 29–30)
• Right to Constitutional Remedies (Article 32 – considered the "heart and soul" of Constitution by Dr. Ambedkar)

Significance: These rights are essential for the all-round development of individuals and promote the ideal of political democracy. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable, meaning they are enforceable by courts (one can directly approach SC/HC for violation). However, they are not absolute and can have reasonable restrictions imposed by the state.

Part IV of the Constitution (Articles 36 to 51) deals with DPSPs. Borrowed from the Irish Constitution.

Socio-economic goals: They embody the concept of a 'welfare state' and aim to establish social and economic democracy. They are broadly classified into Socialistic, Gandhian, and Liberal-Intellectual principles.

Nature:

• Non-justiciable: They are not enforceable by courts for their violation.
• Fundamental in governance: Article 37 states that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
• They are like an 'instrument of instructions' to the legislature and executive.
• The Supreme Court has often used DPSPs to uphold the constitutional validity of laws or to interpret Fundamental Rights (e.g., right to education from Art 21 read with Art 45).

Added by the 42nd Amendment Act, 1976, on the recommendations of the Swaran Singh Committee. Part IV-A (Article 51-A) originally contained 10 Fundamental Duties. One more was added by the 86th Amendment Act, 2002 (duty of parent/guardian to provide education opportunities for child aged 6-14). Total 11 FDs now.

Moral obligations of citizens: They serve as a reminder to citizens that while enjoying rights, they also have duties to perform towards the nation and society. Like DPSPs, they are non-justiciable. There is no direct legal sanction for their violation, however, Parliament can make laws to enforce them. They help in interpreting the Constitution and determining the constitutionality of laws.

India is a secular state, meaning the State observes neutrality and impartiality towards all religions. The word 'Secular' was added to the Preamble by the 42nd Amendment, 1976. However, the secular spirit was always present in the Constitution.

Features of Indian secularism (Positive concept):

• State has no official religion.
• State treats all religions equally (Sarva Dharma Sama Bhava).
• Freedom of conscience and right to profess, practice, and propagate religion (Article 25).
• Right to manage religious affairs (Article 26).
• Freedom from taxation for promotion of a religion (Article 27).
• Freedom from attending religious instruction in state-funded educational institutions (Article 28).
• No discrimination on grounds of religion (Articles 14, 15, 16).
• State can intervene in religious affairs for social reform and regulation of secular activities.

This concept is distinct from the Western concept of strict separation between church and state. Secularism is a 'basic feature' of the Constitution (S.R. Bommai case).

The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on (Article 326).

The voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act, 1988. This bold experiment, given the high levels of poverty and illiteracy at independence, promotes political equality and makes the government representative and accountable.

Unlike federal states like USA and Switzerland which have dual citizenship (national and state), the Indian Constitution provides for only a single citizenship, i.e., Indian citizenship.

All citizens, irrespective of the state in which they are born or reside, enjoy the same political and civil rights of citizenship all over the country. This feature aims to foster a sense of national unity, common brotherhood, and an integrated Indian identity, discouraging divisive regional loyalties.

The Constitution contains elaborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationality behind their inclusion is to safeguard the sovereignty, unity, integrity, and security of the country, the democratic political system, and the Constitution.

Three types of emergencies:

• National Emergency (Article 352): On ground of war or external aggression or armed rebellion.
• State Emergency (President’s Rule) (Article 356 & 365): On ground of failure of constitutional machinery in states or failure to comply with directions of the Centre.
• Financial Emergency (Article 360): On ground of threat to financial stability or credit of India.

During an emergency, the Central government becomes all-powerful, and states go into total control of Centre. It converts the federal structure into a unitary one without a formal amendment. These provisions have been a subject of criticism for their potential misuse, especially Article 356.

Originally, the Indian Constitution provided for a dual polity (Centre and States). The 73rd and 74th Constitutional Amendment Acts, 1992, added a third tier of government – local self-government (Panchayats and Municipalities).

• 73rd Amendment Act (1992): Gave constitutional recognition to Panchayats (rural local governments) by adding Part IX and 11th Schedule.
• 74th Amendment Act (1992): Gave constitutional recognition to Municipalities (urban local governments) by adding Part IX-A and 12th Schedule.

This feature is unique and not found in many other constitutions, making Indian democracy more grassroots-oriented.

The 97th Constitutional Amendment Act of 2011 gave constitutional status and protection to cooperative societies.

• It made the right to form co-operative societies a fundamental right (Article 19(1)(c)).
• It included a new Directive Principle of State Policy on promotion of co-operative societies (Article 43B).
• It added a new Part IX-B to the Constitution entitled “The Co-operative Societies” (Articles 243ZH to 243ZT).

This aims to ensure that cooperative societies function in a democratic, professional, autonomous, and economically sound manner. (Note: In July 2021, the Supreme Court struck down certain provisions of Part IX-B related to state cooperatives, holding that they were passed without state ratification, thus impacting Centre's legislative competence over state cooperative societies. However, provisions related to multi-state cooperative societies remain.)