Constitution is the basic legal document according to which the governance system of the country is implemented. It is the basic law that determines and regulates the boundaries of the principal organs of government, their functions and the rights of citizens. Mainly two things are included in the constitution-
It deals with the relations between the various organs of government and
Determines the reciprocal relationship between the government and the citizens.
In a democratic government, the importance of the constitution increases even more as citizens participate, directly or indirectly, in the conduct of its governance. In a democratic system, the powers of the government are limited and they are clearly mentioned. The rights of citizens are also clearly mentioned in this system. Thus the constitution is superior to all the laws of the country. These laws of the constitution are the source of those rules and regulations, which are made to run the governance of the country.
The constitution is said to be the source of power and authority of the government. It is made clear in the constitution that what are the powers of different organs of the government, what it can do, what it cannot do. The purpose of doing this is to minimize the chances of any confusion or controversy regarding the working of various organs of the government. More importantly, the government cannot abuse the power because of the constitution. This is the reason why the constitution is the most important document of a country.
Functions of the constitution
The constitution should provide such a set of basic rules so that there is a minimum coordination and trust among the members of the society.
The constitution decides who will have the decision making power in the society. It also decides how the government will be formed.
The constitution imposed certain limits on the laws that the government can apply to its citizens. These limits are fundamental in the sense that the government can never violate them.
The constitution should give such capacity to the government so that it can fulfill the aspirations of the people and create the right conditions for the establishment of a lawfull society.
Constitution making of India
The Constitution of India was made by a Constituent Assembly, whose members belonged to different regions and sections of India. Fortunately, in the Constituent Assembly, Dr. Rajendra Prasad, Jawaharlal Nehru, Dr. B.R. Ambedkar, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Dr. Shyama Prasad Mookerjee, Sardar Baldev Singh, Smt. Sarojini Naidu etc. were included. This assembly elected Dr. Rajendra Prasad as its chairman. Dr. B. R. Ambedkar was made the Chairman of the Drafting Committee. The Constitution was passed by the Constituent Assembly on 26 November 1949, but it was implemented on 26 January 1950.
Preamble of Indian Constitution
The preamble literally means introduction. The Preamble of the Indian Constitution deals with its objectives, goals, ideals and its basic principles. The Preamble of the Indian Constitution is directly related to the Objective Resolution which was passed by the Constituent Assembly on 22 January 1947.
The Constitutional Adviser to the Constituent Assembly, B N Rao, prepared the draft of the Preamble on the basis of this proposal. The Drafting Committee of the Constitution considered this draft and passed it at the last stage of the work of the Constituent Assembly by making necessary amendments in it so that it is in conformity with the various provisions of the Constitution.
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.
The first thing comes in the preamble 'We the people of India', which means that this preamble declares the people of India as a sovereign power. The leaders of our national movement had always emphasized the sovereignty of the Indian people.
The Constituent Assembly that framed the Constitution was not directly elected by the Indian people. It was indirectly elected by the Legislative Assemblies of the Indian provinces. These Legislative Assemblies were themselves elected in 1946 under the Government of India Act of 1935. Under the Act of 1935, the voting rights was limited to a very few people. The princely states had even less representation. Despite all these limitations, we can call the Constituent Assembly as the real representative body of the people because almost all the ideologies were represented in it.
Its second important feature is that it talks about the establishment of a fully sovereign socialist, secular, democratic republic in India. Sovereignty means a system where India is completely independent of any internal or external authority.
The words Socialist and Secular were included in the Preamble by the 42nd Amendment of the Constitution. The word socialist was used to include socialist philosophy in the constitution. It is worth mentioning here that in the Constituent Assembly when K.T. Shah had proposed a proposal for the same purpose, then Jawaharlal Nehru strongly opposed it by saying that the two chapters of the Constitution, Fundamental Rights and Directive Principles of State Policy, had already provided for the essence of economic democracy. If so, then such terminology should not be used which different people take different meanings.
Similarly, there was a suggestion in the Constituent Assembly that secularism should also be mentioned in the Preamble. But this was also opposed by saying that this word does not have any definite meaning, but in 1976, the country's leadership thought it appropriate to put it in the Preamble. The term secular has been interpreted by Indian courts, according to which secularism means the absence of discrimination on the basis of religion. Secularism is also to see all religions equally.
Democracy means a system where the government is elected by the people and which is accountable to the people for its actions. According to this, elections are held after a certain interval and the people get the right to vote freely and lawfully. It also means that there will be rule of law here and no one will be able to conduct voluntarily.
Republic means a system where the head of state gets the office by election and not on the basis of heredity.
One of the objectives of the Preamble is that all citizens should get social, economic and political justice. The general meaning of justice is that where there is no discrimination of any kind and everyone gets their due rights.
Social justice means a system where no one is discriminated against on the basis of caste, creed, sex, place of birth, religion or language etc. and everyone gets equal place/opportunity in the society. . Similarly, political justice refers to a system where all citizens have an equal right to vote, contest elections and hold public office.
Freedom of thought, expression, belief and worship is also mentioned as ideal in the Preamble. It means that all citizens should be equally free to practice religion and express their views freely and the state should not interfere in these matters so long as the freedom or rights of others are not inhibited. Equality of status and opportunity is also mentioned in the Preamble. This means that all citizens should get proper opportunity to make full use of their talents and develop their personality without any hindrance.
The Preamble also mentions to increase fraternity ensuring the dignity of the individual, unity and integrity of the nation. This means that the basis of the spirit of fraternity in India should be the dignity of the individual and not his position in the society. Similarly, the basis of the unity and integrity of the nation should also be the spirit of fraternity.
The goal of the Preamble is to establish a social order where the people are sovereign, the government is elected and accountable to the people. The power of government should be limited by the fundamental rights of the people and the people should get proper opportunities for their development. Although legally the Preamble cannot be enforced by the courts, yet it can prove useful in interpreting various provisions of the Constitution and acts as a guide in case of dereliction of duty.
Indian Constitution: Salient Features
The main features of the Indian Constitution are of two types. Some features are unique and are not found in any previous constitution.
Prepared by Indian public :
This constitution was framed by the Constituent Assembly, the representative of the Indian people. This Constituent Assembly was indirectly elected by the Provincial Legislative Assemblies. These Legislative Assemblies were themselves elected on the basis of limited voting rights. The representatives of the princely states of the Constituent Assembly were nominated by their rulers. Despite all this, the Constituent Assembly can be called the representative body of the people because it had representation of all sections of the society and all ideologies.
Effect of different constitutions:
This constitution is also unique in the sense that many constitutions of the world were used in its creation. America's influence on the Fundamental Rights of our Constitution and Supreme Court, Ireland on Directive Principles of State Policy, Germany on emergency arrangements, Canada on the distribution of legislative powers and Britain's influence on parliamentary institutions is clearly visible. Apart from these, the framers of our constitution had taken many clauses from the Government of India Act of 1935 as they are.
Sovereignty of the People:
According to this constitution, the supreme power of the country is vested in the Indian people. In earlier constitutions this power was embodied in the British Parliament, even as the Indian Independence Act of 1947 recognized the supremacy of the British Parliament. The inherent sense of sovereignty is that the Indian people are not subject to any external power.
This constitution provides for the establishment of a republic in India. Earlier, the king of Britain was the head of state, who got this post on the basis of heredity. Republics existed in many parts of ancient India. This system continued for about 1000 years, but during the time of constitution making there was no such part in India where the republic system was prevalent.
This constitution provides for the establishment of a secular state system in India. Although secularism has not been explained anywhere in the Constitution, it can be derived from various provisions of the Constitution. It has been used as a sign of absence of discrimination based on religion and giving equal respect to all religions. Earlier, under the Government of India Act of 1935, there was a provision for a department related to religious activities.
Fundamental Rights and Duties
Fundamental rights of Indian citizens have been enshrined in the constitution. It has also been amended over time. There was no provision of duties in the original constitution. This system was added to the Constitution through the 42nd Constitutional Amendment in 1976.
Directive Principles of State Policy:
The Directive Principles of State Policy have been provided in the Constitution. Prior to this, there was no such provision in any constitution. Although the Directives mentioned in the Government of India Act of 1935 seem like the Directive Principles of State Policy, there is a vast difference between the objectives and goals of both.
It is worth noting that during the national movement, our leaders had made some promises regarding the fundamental rights that Indian citizens should get in independent India, but in 1947, when India became independent, our leaders realized that They do not have adequate means to provide some fundamental rights, especially economic and social rights. But at the same time they did not want to go back on their promises.
Therefore, he decided that the fundamental rights should be classified into two categories: some rights should be given immediately and some rights should be given at the time when they get the ability to do so. The rights of the first class have been included in the third chapter of the constitution under the name of Fundamental Rights, while the rights of the second class have been included in the fourth chapter under the name of Directive Principles of State Policy.
Although the court is unable to enforce the rights which have been included in the fourth chapter, yet these are the fundamental principles of governance and the state (ie the Government of India, the Indian Parliament, the state government, the state legislature, the local institutions and those located in the Indian territory or any authority under the Government of India) has to recognize them necessarily.
The Constitution provides for judicial review of the acts of the federal and state legislatures and the activities of the federal and state executives. Earlier there was no such provision in any constitution. Both the organs of the government, the legislature and the executive, work with utmost care because of this system. They cannot use their power voluntarily.
Universal adult Voting right
This constitution provides universal Voting right to all adults in India. All the constitutions before this had a system of limited voting right. Even in the Government of India Act of 1935 (in which the maximum number of people had the right to vote), only 14 percent of the people had the right to vote. Even in western democratic countries, such rights were not available to citizens for many decades. In this sense, this step of the Indian Constitution was revolutionary.
Recognition of Hindi as official language:
The Constitution recognizes Hindi as the official language of the Union of India. Earlier, English had got this place in India. Apart from Hindi, the constitution recognizes 21 other Indian languages as regional languages.
A unique blend of Rigidity and Flexibility.
There is also a process to amend this constitution. There is no provision for amendment in any earlier constitution. Only the British Parliament had the right to amend the Constitution. The process of amendment given in this constitution has a unique mixture of Rigidity and Flexibility.
It is possible to amend some provisions of the Constitution by a simple majority of both the Houses of Parliament, for example, to change the name or extent of a state, but such an amendment is not considered an amendment of the Constitution.
There are some amendments which require confirmation by the legislatures of half of the states, with the requirement of an absolute majority of the total number of members of both the houses of Parliament and two-thirds majority of the members present and voting. For example, whenever an amendment has to be made related to the federal nature of the Constitution, it is necessary to follow this process. All other amendments require an absolute majority of the total number of members of both houses of Parliament and a two-thirds majority of the members present and voting. This process is proof of the rigidity of the Constitution.
It is a comprehensive constitution with 395 articles and 12 schedules. The original constitution had only 8 schedules. Later, through various constitutional amendments, four more schedules were extended. Prior to this, the Government of India Act of 1935 had 321 departments and 10 schedules.
This constitution provides for full parliamentary democracy in this country, in which the people choose their representatives, these representatives control the executive and the council of ministers is collectively responsible to them. Earlier, some efforts had been made in this direction, especially through the Government of India Act of 1935, which provided for provincial autonomy. But there were so many restrictions in it that the development of full parliamentary democracy was not possible. In a parliamentary democracy, elections are held after a certain interval.
This constitution establishes the federal state system in this country. Although there was a provision to establish a federal system of government in the Indian Government Act of 1935, but due to its staunch opposition, especially due to the non-cooperation of the princely states, this system could not be implemented.
Despite the federal system being implemented according to the constitution, some critics are dissatisfied with it because it has a complete majority of centralization. Some critics even say that it would be more appropriate to call it a 'unitary constitution, which has some federal features' than to call it a federal constitution, which has some unitary tendencies.
This constitution provides for some concrete positive works, such as reservation in legislatures and government jobs, etc. to uplift the weaker sections of the society. Earlier, similar reservation system existed in the Indian Councils Act of 1909, the Government of India Act of 1919 and the Government of India Act of 1935.
There are three types of emergency in the constitution (national emergency, failure of constitutional machinery and financial emergency). Earlier, the Government of India Act of 1935 had more or less similar provision.
By national emergency, we mean the system declared under Article 352 of the Constitution. Under this article, whenever the President feels that the security of the country or any part of the country is threatened due to war, external aggression or internal armed rebellion, he can declare emergency. In such a situation, the federal form of the constitution assumes a unitary form.
By the failure of the constitutional machinery, we mean such a system, when the President receives such information from the Governor of a state or if he is convinced that it is not possible to run the administration in that state according to the provision of the Constitution, then he can impose President's rule there. In such a situation, the executive power of the state becomes subordinate to the central executive and the legislative powers of the state are subordinated to the Parliament.
By financial emergency we mean a situation when the President is convinced that the financial stability of the nation or any part of the nation is in danger, then he can declare an emergency. In such a situation, the President gets the right to give instructions to each of the states on how to conduct their financial matters.
The President also gets the power to deduct the salary, allowances, etc. of such officers who receive salary, allowances etc. from the Consolidated Fund of India and which cannot ordinarily be deducted.
Some independent agencies are also mentioned in the constitution, which perform the functions assigned to them. Earlier, the Government of India Act of 1935 also provided for such agencies. Some of the agencies provided in the constitution are as follows:
Election Commission: It arranges for the election of Parliament, State Legislatures, President and Vice President. Some provisions have been made in the constitution to keep this institution free from the control of the executive.
The Comptroller and Auditor General looks after and controls the finances and accounts of the Union and the States. Provision has been made in the constitution to keep it free from the control of the federal and state executives.
Federal and State Public Service Commissions: They conduct examinations and interview candidates for the higher services of the Central and State Governments respectively and make recommendations for their appointment.
Unitary and Federal Characteristics of the Indian Constitution
There are also two views regarding our polity: according to some people, it is a federal state with a predominance of unitary features, while others think that it is primarily a unitary state in which some federal features have been incorporated. Pro. K. C. Weier refers to it as a quasi-federal polity.
The following features are essential to federal theory:
There should be a definite division of powers between the union government and the governments of the States,
This division should be by a written agreement. In other words, there must be a written constitution which is the source of the powers of the Union and the State,
This agreement i.e. constitution should not be amended by any one party (Union or State Government). In other words, the constitution must be hostile,
The Constitution should have the supremacy. This means that the powers of the Union and the states, such as the legislature, the executive and the judiciary, should be subject to the authority of the Constitution,
There should be an impartial judiciary like the Federal or Supreme Court, which can settle disputes arising between different governments and can interpret the Constitution when necessary.
If we tighten the Indian Constitution on the above criterion, we see the following features:
Distribution of Powers:
In the Indian Constitution, there is a definite division of powers between the Union and the States. There are three lists in the Seventh Schedule of the Constitution.
The Union List contains 97 subjects in which the Union Government has exclusive jurisdiction,
The State List contains 66 subjects in which the States have exclusive jurisdiction,
The Concurrent List has 47 subjects. In which both the Union and the States have jurisdiction, but if there is a conflict between the laws of both, then the federal law takes precedence.
The basic source of powers for the governments of both the Union and the States is the Constitution, which was drafted by the Constituent Assembly in November 1949.
Compatibility of the Constitution:
The method of amending the constitutional system related to the federal principle is hostile. Such an amendment requires not only an absolute majority of the total number of both the Houses of Parliament and a two-thirds majority of the members present and voting, but also the ratification of half the state legislatures.
Supremacy of the Constitution:
The Constitution of India enjoys supremacy. The basic source of the powers of all the powers of the Union and the states such as the legislatures, executives and judiciary is the constitution and all of them are under the constitution.
The Constitution provides for a Supreme Court which has the highest authority to interpret the Constitution. It has fundamental jurisdiction in relation to disputes arising between the Union and any one State or between the Union and more than one State or between one State and another State, or between any one State and more than one State.
Thus it is clear that the entire major elements essential for a federal state are present in the Indian Constitution. But there are some elements in the Indian Constitution which are somewhat contrary to the generally accepted norms for the federal system of governance. Some of the main elements of such elements are as follows:-
Generally, units have their own separate existence in the federal system of governance and they also have their own separate constitution, in which they can amend according to their need, but it is not so in India. The Indian Parliament has the right not only to change the boundary of any state by ordinary law, but can also change its name. States do not have a separate constitution of their own and cannot amend the constitution on their own.
The division of powers between the Union and the States is also more inclined towards the Union. The Union List is the largest. The Center also enjoys priority in the subjects belonging to the Concurrent List. Combining the three lists, we see that in about two-thirds of the subjects, the center has priority. There are some subjects in the Concurrent List like economic and social planning or social security, which can be interpreted in such a way that in practice the powers of the state can be greatly limited.
The Constitution empowers the Parliament to make laws even in matters related to the State List. If the Upper House of Parliament i.e. Rajya Sabha passes such a resolution by a majority of two-thirds of the members present and voting, that it would be appropriate in the national interest that the Parliament should make laws on the said subject. The said law shall be applicable for the period specified in the proposal but this period cannot exceed one year. If the Rajya Sabha passes the resolution again by the above method, then this period can be extended again for one year. The Rajya Sabha can extend this period repeatedly by passing such a resolution, but this period cannot be extended for more than one year at a time.
The Governor can reserve for the consideration of the President any law made by the State Legislature on any matter relating to the State List. It is necessary to preserve some such laws and bills related to some subjects cannot be introduced in the State Legislature without the prior approval of the President.
Although peace and order is a subject in the State List, the Central Government, if it considers necessary, sends the Central Reserve Police even without the consent of the States. Sometimes this is done despite opposition from the state governments. It is worth noting that such steps of the Central Government are opposed by the opposition, but when it thinks fit (such as in the Ayodhya and Gujarat cases) it also demands the sending of the Central Reserve Police.
The Governors of the states are appointed by the President and they remain in power till his pleasure. Whenever the Governor exercises his discretionary powers, he is responsible to the President
The federal government has the power to give directions to the state governments in certain matters. The matters in which these directions can be given are as follows: To obey the law made by Parliament or not to conduct any conduct contrary to the exercise of federal executive power. Such directions are binding on the states. Adequate powers have been given to the federal government by the constitution to get such directions to be carried out. Failure to comply with these instructions can be considered a failure of the constitutional machinery and President's rule can be imposed in that state.
Financial resources have been distributed by the Constitution in such a way that the State Governments always have to look to the Union Government for grants. The Finance Commission, which recommends such grants, is also appointed by the President.
Under Article 352 of the Constitution, when a proclamation of emergency is made, the Parliament has to make laws in matters related to the State List, to give instructions on how the States should exercise their executive power, to the federal officers related to the State List. The subjects get the right to exercise executive power and to suspend the financial provisions of the constitution.
Whenever a declaration of failure of the constitutional machinery is made under Article 356 of the Constitution, the President gets the right to take over the executive power of the state government (including the powers of the Governor), although he is the High Court. cannot take away the rights of The President also gets the power to authorize the Parliament to make laws in the subjects related to the State List.
Whenever a proclamation of financial emergency is made under Article 360 of the Constitution, the President can issue necessary directions regarding finance to the states. Such directions also include orders relating to reduction in salaries, allowances, etc. of Government servants of the Union and the States. In such an emergency, money bills passed by state legislatures come under the control of the federal government.
Generally, there is a system of dual citizenship, federal citizenship and state citizenship in the union states, but there is no such system in India. There is a system of single citizenship in India. In fact, every citizen in India has the right to settle in any part of India.
Generally there are dual courts in the union and states. Federal courts differ from state courts. States have their own Supreme Courts, whose decisions cannot be appealed against in any other court. But there is only one judicial system in India. The Supreme Court is the highest court of appeal. It also has the right to hear appeals in the matters related to the State List.
Generally, there is a separation between the government jobs of the Union and the states. Union has its own jobs and states have their own jobs. But there is a system of all India jobs in India. The people of these jobs are appointed in a specific state, but if required, the union government can call them on deputation for a fixed period. Due to this, the feeling of close brotherhood among the people of these jobs is inculcated which weakens the federal principle.
It is clear from the above description that our constitution makers wanted to make the center a strong force. This is proved by the distribution of legislative, executive, and judicial powers. During an emergency, the federal government assumes a kind of unitary form. The framers of our constitution were hesitant to follow the federal principle due to the following reasons-
I. When the Constituent Assembly was framing the Constitution, there was chaos all around the country. The communal forces were highly active due to the partition of India. Extremists were active in some parts of India. In the Warangal and Nalgoda districts of Madras Province, the Madras Government did not rule.
II. It was also discussed in the newspapers of those days that the people of some places in India were trying to form an independent Bengali speaking nation with East Pakistan (present-day Bangladesh). Therefore, it was felt that the federal government needs to be strong to meet such challenges.
III. When India became independent, then decentralized unitary government system was prevalent here. The general public was influenced by Indian nationalism. In fact, the Indian National Congress fought and won the 1946 elections to the provincial legislative assemblies on the slogan of Akhand Bharat. Not only the Congress, almost all the political parties were imbued with the spirit of fanatical nationalism.
IV. There is a general tendency towards centralization in almost all the union states of the world. This trend is increasing day by day due to the modern development in the transport, communication, and technical field.