CONSTITUTION

CONSTITUTION

BORROWED FEATURES OF INDIAN CONSTITUTION

Dr. BR Ambedkar proudly claimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the world’. The Constitution of India has borrowed its provisions from other countries as well as the Government of India Act, 1935.

What are the various sources of Constitution of India?

What is the criticism of borrowing provisions from other Constitutions?

• Not original: The critics opined that the Indian constitution contains nothing new and original.
• Opinions: It was described it as a “borrowed Constitution”, “bag of borrowings”, a “patchwork” of several constitutions of the world.

However, BR Ambedkar dismissed the criticism in the constituent assembly saying the fundamentals of the Constitution are recognized all over the world and that the Constitution is not a blind copy but has been adapted to the Indian circumstances.

Some Important Concepts

1. Rule of Law
   • Meaning and Importance
     • Meaning: Generally, the rule of law is the principle that no one is above the law and there will be equality of treatment with respect to the people. For instance, one may be the Prime Minister or a common citizen; all are equally subject to the law. That imparts the element of non-discrimination in the concept of the Rule of Law. This concept changed the mode of administration from “King was Law” to “Law is King”. It is quite essential for the healthy functioning of democracy. The rule of law is a legal system that governs by laws rather than by persons.
   • A.V. Dicey had prescribed three features of Rule of Law Doctrine
     • Supremacy of Law: No man shall be punished or made to suffer in body or goods except for the violation of law.
     • Equality before Law: There must be equality before the law or equal subjection of all classes to the ordinary law of the land.
     • The primacy of the rights of individual: That is, the constitution is the result of the rights of the individual as defined and enforced by courts of law, rather than a constitution being the source of the individual’s rights apply in case of written constitution. It stands modified in India, where it reads that the constitution is the supreme law of land & all other laws in order to be legally valid shall conform to the constitution.
     • Rule of Law vs Law and order: Rule of Law should not be equated with law and order. The breakdown of law and order is a temporary phenomenon. Breakdown of Rule of Law means collapse of good governance & breakdown of constitutional machinery.
   • Importance [Rule of Law is important for Ethics Paper as well]
     • Overcoming Ethical dilemmas: Following rule of law will help in overcoming the ethical dilemmas and help civil servants to function without fear or favour.
     • Secrecy vs Transparency: For instance, denial of information under RTI. Following rule of law will help the government in proactive disclosure of information vital for the public, but at the same time withholding the information vital for national security.
     • Preferential treatment vs Non-discrimination: Equality, though a basic virtue to be followed, equity is necessary. Even the constitution under Article 14 provides for differential treatment and upholding it will help in overcoming the sense of discrimination created by differential treatment.
     • Overcoming public sentiment and maintaining civil service neutrality: In some situations, it might seem ethically right to circumvent rule of law. E.g., encountering a child rapist or terrorist and so on. But, Rule of law help in overcoming emotional ambiguities. E.g., even the terrorist Kasab was prosecuted as per Rule of law.
   • Relation to the Indian Constitution (How constitution upholds Rule of Law?)

• Preamble: Prescribes the ideas of Justice, Liberty and Equality. These all works as foundation stone for Rule of Law.
• Fundamental Rights: Concept of Rule of law is further enunciated in Part III of the Constitution and is made enforceable. This concept is implicitly mentioned in the fundamental rights of our constitution. The equality before law (Article 14) includes Rule of Law in itself.
• Constitution as source of Power: All three branches of the government are subordinate i.e., the Judiciary, Legislature and the Executive are not only subordinate to the Constitution but are bound to act according to the provisions of the Constitution.
• Judicial Review: The doctrine of judicial review is embodied in the Constitution and the subjects can approach the High Court and the Supreme Court for the enforcement of fundamental rights. If the Executive or the government abuses the power vested in it or if the action is mala fide, the same can be quashed by the courts of law.
• Chief Settlement Commissioner Punjab v. Om Prakash Case: The Supreme Court observed that rule of law as central and most characteristic feature. The Court added that the doctrine of rule of law rejects the conception of the dual state in which government action is paced in a privileged position of immunity from control by law.

• Rule of Law v/s Rule by Law

• Nazi Germany put Jews in concentration camps and thereafter sent them to the gas chambers. The justification offered was that there was a law which empowered such acts to be done. But that was rule by law, not Rule of Law.
• The existence of a law is necessary but that is not sufficient. The law must have a certain core component which guarantees the basic human rights and the human dignity of every person.
• Rule of Law means that the supreme authority must be granted to Law – which implies that Law should dictate upon what terms like justice, liberty, equality and fraternity must mean and lay down standards for judgments for citizens. A Law of Rules on the other hand would mean the rigidity of the fine line of rules that must be adhered to in order to set a thing into motion; rules are made to support the higher principles of Law and must be used in assistance of furthering the Rule of Law.

• Examples for concerns regarding Rule of Law in India?
  • For instance, a law that permits the killing of suspected terrorists or enables indefinite detention without prior hearing in the absolute discretion of the executive is destructive of the rule of law.
  • Fake encounters and Custodial Torture have no place in a govt professedly based on the rule of law.
  • Denial of ration due to technical error of Aadhaar led to the death of a tribal girl in Chhattisgarh due to hunger.
  • Other instances like, following documents thoroughly during disaster relief, emergency treatment, organ donation and so on.
• Exceptions to the rule of law
  • Different Powers: Equality of Law does not mean that the powers of private citizens are the same as the powers of public officials. e.g., a police officer has the power to arrest which the private citizen does not have.
  • Special Rules: The rule of law does not prevent certain classes of persons from being subject to special rules, for example, the armed forces are governed by military laws.
  • Discretionary powers: Ministers and other executive bodies are given wide discretionary powers by the statute.
  • Different rules: Certain members of the society are governed by special rules in their professions like lawyers, doctors, and nurses.
  • Other Exceptions like
    • The President/Governor is not answerable to court of law in discharge of his executive functions.
    • No criminal proceedings whatsoever can be instituted against President or Governor of state, while he is in office.
    • No civil proceedings in which relief is claimed can be filed against President or Governor except after a expire of a 2 month notice that is served on him.
    • Under International laws, the visiting heads of state, heads of govt, ministers, officials and foreign diplomats who are posted in country are not subjected to jurisdiction of local courts in discharge of their official functions due to diplomatic immunity.

1. Separation of powers and Doctrine of Checks and Balances 
2. EQUAL PROTECTION UNDER LAW
   • Meaning as per Indian constitution: The concept of equality followed in Indian Constitution is egalitarian equality and not just formal equality concept. There is a difference between formal equality and egalitarian equality. Formal equality means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged section of the society or to the disadvantaged section of the society. Egalitarian equality is proportional equality.
   • Equality before Law vs Equal Protection of Law
     • Equality before the Law
       • Meaning: The first expression equality before the law contained in Article 14 is taken from English common law and ensures that all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual.
       • Example
         • Penalty and fines: which are same for each and every citizen irrespective of its wealth, status, caste, creed etc.

• Equal protection of Law
  • Meaning: It implies “equals are equal”. It does not mean that all are equal. It is the core and essence of the right to equality and the state has the obligation to take the necessary steps so that every individual is given equal respect and opportunities to live a respectful life. Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. All that article 14 guarantees is a similarity of treatment and not identical treatment.
  • Conditions to satisfy reasonable classification: The guarantee of equal protection of law and equality before the law does not prohibit reasonable classification. The state always has the power to have a classification on the basis of rational distinction relevant to the particular subject to be dealt with but such permissible classification must satisfy two conditions namely the classification to be founded on intelligible differentia which distinguishes persons or things that are grouped from others who are left out of the group and the differentia must have a rational relation to the object sought to be achieved by the legislation.
  • Union of India v. Rakesh Kumar (2010) Case: The state can treat unequals differently with the objective of creating of creating a level playing field in the social economic and political sphere as held in the case of Union of India v. Rakesh Kumar (2010).
  • Examples for Equal Protection of Law
    • Reservation System in India
    • Maternity leave (180 Days) vs Paternity leave (15 days)
    • Article 371-A: Special Provisions for Nagaland: Article 371A makes special provision with respect to the State of Nagaland to protect the Nagas

1. PROCEDURE ESTABLISHED BY LAW

• Procedure Established by Law vs Due Process of Law
  • Meaning of Procedure established by law: The “Procedure Established by Law” means that a law is duly enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter. The concept has been enshrined in Article 21 of the Indian Constitution, which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
  • Meaning of Due Process of law: “Due Process of Law” is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just. The due process of law originated in the USA while Process Established under Law has its origin in British.
    • Due process of law confers wider power on the judiciary. Under this doctrine, if an action of the executive is challenged before the court, then the court will see whether there exists any law passed by a competent legislature that authorizes the executive to such an action.
    • Due process of law will also see whether the executive has followed the prescribed procedure given by the law.
    • Under due process of law: In addition, the court will also apply the principle of natural justice and see whether the law so passed by the legislature is just fair and reasonable.

• Meaning in Indian Context: Though the term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution.
• Maneka Gandhi vs Union of India case (1978): SC held that – ‘Procedure established by law’ within the meaning of Article 21 must be ‘right, just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in USA.
• Judicial Review: The power of judicial review implicit in the due process clause ensures protection of the fundamental rights of the citizens. It also prevents legislature from interfering into the rights of the citizens. Moreover, it helped to nullify draconian laws passed by the Legislature. e.g.: TADA, POTA, section 66A of IT act etc.

SEPARATION OF POWERS

Separation of powers is the division of the legislative, executive, and judicial functions of government. It aims to limit arbitrary excesses by the government. The theory of separation of powers signifies mainly three formulations:

• The same person should not form part of more than one of the three organs of the state.
• One organ should not interfere with any other organ of the state.
• One organ should not exercise the functions assigned to any other organ.

Constitutional Provisions

• Article 13: The judiciary also has power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per the provisions of the constitution.
• Article 50 puts an obligation upon the State to separate the judiciary and the executive.
• Articles 121 and 211: provide that the legislature i.e. the Parliament and the State Assembly cannot discuss the conduct of the judge of Supreme Courts or any of the High Courts (can be done only in case of removal of judges as per Articles 124 and 217).

In India, rather than strict separation of powers as in USA, separation of functions is followed along with a system of checks and balances.

Checks and Balances

1. Judiciary Control

• On the Legislature: Article 13 empowers the judiciary to strike down any law inconsistent with the constitution. Example:
  • In the Keshavananda Case, the SC gave the doctrine of basic structure and stated that some parts for the constitution were not amendable.
• On the Executive: The Constitution gives the judiciary the power to review the constitutional validity of all executive actions. It can also direct the government to perform any necessary function to ensure complete justice as per Article 142. Examples:
  • SC’s directive to distribute food grains
  • Vishakha guidelines

2. Legislative Control

• On the Judiciary: Legislature can remove Judges of the High courts and Supreme Court and also discuss their conduct in cases of such removal. The legislature can also alter the basis of the judgment of judiciary while adhering to the constitutional limitation.
• On the Executive: The legislature can hold the government accountable through motions like No-confidence, adjournment; it can also stall any legislation being action sought by the government.

3. Executive Control

• On the Judiciary: The President i.e. executive appoints the judges of the High courts and the Supreme Court and also removes them after resolution to that effect is being passed by the Parliament.
• On the Legislative: Executive does possess ordinance making power as per Articles 123 and 213. Subordinate legislation is done by the executive within the limit of enabling legislation to facilitate proper implementation of laws.

Need for Separation of Powers

1. For Administration
   • Efficiency: The efficiency of the organs of state increased due to separation of works hence time consumption decreases. Also there is the division of work and hence division of skill and labour occurs.
   • Sectoral Expertise: Since the experts will handle the matters of their parts so the degree of purity and correctness increases.
   • No Functional Overlap: Due to division of work there is no overlapping remains in the system and hence no encroachment to the others’ working area.
   • Independence and Autonomy: Since the overlapping removed then there is no possibility of competition between different organs.
2. For Democracy
   • Checks Abuse of Power: The concept of separation and the checks and balances ensures no particular organ starts to accumulate autocratic or unconstitutional tendencies.
   • Protects the Constitution: Separation of powers ensures that any violation of the constitution by an organ is checked and balanced by another and thus protecting any breach.
   • Judicial Independence: The concept of separation of powers helps to strengthen the independence of the judiciary and thus the public trust in justice delivery.
3. For Citizens
   • Liberty: Separation of powers allows for protection of the liberties and rights of the individual, and protects him or her from different forms of despotism and oppression.
   • Checks Arbitrariness: The Citizen is protected from any arbitrary order or law passed by the organs when the other checks it.
   • Public Faith: Even if one organ fails, the citizen still has the other to seek remedy from.

Issues with the system

• Excessive Centralisation: The weakness on the other hand, is that the power is centralised in the executive arm of government. Example: ordinance making power, emergency provisions, etc.
• Policy Paralysis: Often there is mutual discord between the organs and thus leads to paralysis of policy, laws and their implementation.
  • Example: NJAC amendment had been struck down by the SC
• Judicial Overreach: Judiciary encroaches upon the domain of the executive and legislature while giving directions like SC gave the highway liquor ban order, which was in executive domain.
• Majoritarian Government: The presence of a single largest party, can diminish the role of the legislature in holding the executive accountable.
  • Data: According to data by PRS Legislative Research, 71% bills in the 15th Lok Sabha were referred to Standing Committees while only 25% in the 16th Lok Sabha.
• Collusion and Partiality: Often nexus between different organs of government can be extremely detrimental to the objectivity of these state institutions and can turn repressive.

Issues between Judiciary and Executive

• Appointment of Judges: The issue of appointment of judges has been a tussle since many decades now; most recently the NJAC act was invalidated by the judiciary.
• Judicial Over-reach: The judiciary also starts oversetting by interfering in executive policy matters using such powers conferred under the Constitution. Examples: Deepavali fireworks related ban, banning use of vehicles of certain make after 10 or 15 years, denying the executive any role in the appointment of judges by instituting collegium.
• Judicial Review: The judiciary has enormous power to cross-check the government action whether it is constitutional or not which sometimes leads to paralysis in overall governance.
• Basic Structure: The complete list that entails as basic structure has never been given by the judiciary, making it vague and opaque and thereby causing difficulty for the executive and legislature for taking decisions.

Judicial Pronouncements

• Keshavananda Bharti Case (1973): Justice Beg added that separation of powers is a part of the basic structure of the constitution.
• Indira Gandhi v. Raj Narain (1975): It was held that adjudication of a specific dispute is a judicial function in which parliament, even under constitutional amending power, cannot exercise power.
• Asif Hameed v. State of J & K (1987): Legislative, Executive and Judiciary have to function within their spheres. No organ can usurp the functions assigned to another.
• I.R Coelho Case (2007): The SC reiterated that the principle of constitutionalism advocates a diffusion of powers, necessitating different independent centres of decision making.

Way Ahead

• Functional Autonomy: The upholding of functional autonomy of both domains shall prevent the existing conflicts between the judiciary and the executive.
• Mutual Respect: This ensures that all organs realise that through different ways they have the same goal; the welfare and betterment of the citizens.
• Parliamentary Debates: More emphasis must be given to debates around bills and executive orders to ensure more holistic legislation.
• Punitive Measures: There has to be punitive measures in the event of collusion and gross violation of this doctrine as it is the cornerstone of Indian democracy.
• Arm’s Length Principle: A tacit limit can ensure that no organ crosses any line and encroaches into the domain of the other.

2nd ARC Committee Recommendations

• Office of Profit: It recommended defining an “office of profit” to ensure no breach of separation of powers.
• Legislative independence: Ministers in the Lok Sabha must keep separate their roles as Minister and constituency member.
• Abolish MPLADS Scheme: These schemes do seriously erode the notion of separation of powers as the legislator directly becomes the executive.

Examples from around the world

• USA: The Supreme Court of the US has not been given power to decide political questions, to protect the independence of the executive.
• UK: Until 2009 when the Supreme Court of UK was established, the final authorities on most judicial disputes were the members of the upper house of the parliament.

DIRECT VS INDIRECT DEMOCRACY

Direct democracy or pure democracy is a form of democracy in which people decide on policy initiatives directly. This differs from the current democracies, where people are represented by elected representatives.

Differences between Direct & Indirect Democracies

Current Examples of Direct democracy in India

• Gram Sabhas: The 73rd Constitutional Amendment Act, Gram Sabha is an institution of direct democracy through which rural people participate in the decision-making process.
• Right to Recall: This allows citizens to remove or replace public servants holding posts of Sarpanch, Mukhiya, Corporator etc., in the local bodies. It is in effect in a total of 10 states at the panchayat level.

Need for Direct Democracy in India

1. Political
   • Citizen Empowerment: Citizens themselves decide upon issues and choose the outcomes they want.
   • Citizen Sovereignty: The outcomes are based on citizen’s wishes directly rather than through the government which may not always understand citizen’s requirements.
     Example: Scotland held a referendum in 2015 regarding their demand to be independent from the UK.
   • Efficiency: The outcomes will be direct and target specific and faster than legislative process.
     Example: Most referendums and petitions take place in a day, thus saving time and effort in data collection and policy formation.
   • Area and Issue specific: Direct democracy helps in decisions to be made in specific issues or areas which may be overlooked by the government.
   • Democratic Decentralisation: It delegates the power and decision-making authority from the government to the people. Example: Gram Sabhas.
   • Political Accountability: The government is more accountable as the public is empowered to hold them in contempt. Example: The right to recall in Madhya Pradesh.
2. Social
   • Voice to Marginalised: Minority and marginalised will be exerting choices directly, rather than being at mercy of MP/MLAs.
   • Social Justice: Citizens are more aware of their issues and can make better decisions on what they want.
   • Women Empowerment: Direct democracy can ensure only women decide upon the issues that concern them rather than elected governments.
   • Social Harmony: As people to discuss/debate issues with others they also come to better agreements with each other.
3. Economic
   • Less wastage: When people assert their rights requirements, governments will waste less resources on policies unpopular with the public.
   • Tax Compliance: It has been seen that citizens are more tax compliant as they make the decisions of public spending themselves.
   • Less Populism: As governments will reduce expenditure on populist schemes and policies.
     Example: Citizens vote for a particular legislation and whether they prefer to have it or not.
   • Reduces Corruption: As power is vested in public hands, corruption and black money is reduced.
4. Environment
   • Protects Environment from undue development projects: It helps address the concerns of local communities in regard to any development project and its feasibility. Example: The EIA helps authorities consult and have direct talks with local communities.
   • Voice to Forest Communities: It enables the forest communities to decide their preferences and also what they seek from the government. Example: The Forest Rights Act provides the Gram Sabha the right to protect, preserve and manage community forest resources.
5. Individual
   • Proactive participation: Citizens feel a part of state processes and are more responsible to society and their surroundings.
   • Political Engagement: It helps form political opinion and make better electoral decisions.
   • Happier Citizens: The more options people are given to participate politically, the happier they are.

Issues with Direct Democracy in India

1. Political

• Lack of political awareness: Public is largely uninformed about the issues and thus cannot form any opinion or choice on it.
• Rule of Majority: Even direct democracy will show the wishes of the majority which may not be representative of the minority.
• Voter Manipulation: Under the influence of money and bribes, voters can be made to vote in the interests of the political authorities.
• Criminal-Political Nexus: Criminals have a vast sway over the public in India, thus many outcomes can be politically motivated and biased in favour of this nexus.
• Politicisation: Direct democracy can also become politicised with campaigning and political rallying making it irrelevant.
• Oversight Body: There is currently no institutional body to oversee direct democracy activities and it may be too much work for already burdened Election Commissions.

2. Social

• Minority communities: Due to the presence of a large majority population, minority and marginalised may not be effectively represented.
• Male Influence: Especially seen in Gram Sabhas where women vote on the instructions of husbands and other male members.
• Religious Morality: Many outcomes and decisions can be decided by religious morality rather than constitutional morality.
• Lack of Public Interest: Due to the “culture of adjustment” many citizens will not be willing to participate in these processes.

• Large Population: Direct democracy experiments have proved most successful in smaller populations; India’s population may deter efficiency.
• Cessations/Regionalism: Such activities may cause regional disharmony and be used to fuel sensational or statehood movements.

3. Economic

• Costs of incorporation: With a large population, the costs of ballots, EVMs, counting, and distribution of information, each referendum could cost as much as an ordinary election.
• Voter Education: Such initiatives also require investments in voter education and awareness, which can be a costly affair due to India’s population.

4. Individual

• Lack of initiative: Most citizens would be busy earning livelihoods to properly engage in such processes.
• Attitude change: Citizens already habituated to representative democracy may not have enough faith in new direct initiatives.

Way Forward

• Awareness generation: Before introduction of any direct democracy, voter awareness is necessary.
• Political Will: There must be Political will to delegate powers to the public and enable them to make decisions.
• Empowering Panchayats: Gram sabhas are the only constitutional direct democratic bodies; they must be empowered and must be a standard for future direct democratic bodies.
• Social Audits: Social Audits also exercise the opinions of the public towards development and helps improve public accountability.
• Right to Recall: Such a right already existing in many states at the panchayat level must also be extended to state and central legislatures.
• Public Referendums: Referendums can be taken on local body levels on questions of civic works and prioritising what the local needs are.

Best Practices

• European Citizens Initiative: In the EU, an ECI on any issue can be moved by a core group of citizens and has to be eventually backed by at least 1 million citizens.
• Switzerland: In May 2003, the Swiss electorate voted in the federal referendum on the proposed addition of a new article to the federal constitution.
• New Zealand: It allows any person in New Zealand to file an initiative asking that a national referendum be held on an issue.
• UK: The UK held a referendum on whether Britain should exit the EU or not known as BREXIT.

CONSTITUTION: IMPORTANCE, CONSTITUTIONALISM AND SALIENT FEATURES

A Constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a country and determine how that country is to be governed. The term “Constitution” got its name as the word constitution means accumulation and gathering of various aspects. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution. The constitution serves as the backbone of the country.

Importance of the Constitution

1. Importance for Governance
   • Power Distribution: It lays down the functions for smooth governance. Governance basically involves three core functions – making laws, enforcing these laws and adjudicating on disputes arising in the process of enforcing these laws. According to the Indian Constitution
     • Legislature: is responsible for framing laws;
     • Executive: responsible for enforcing laws;
     • Judiciary: responsible for adjudication of disputes.
   • Checks and Balances: Indian Constitution has also laid down an effective mechanism of checks and balances between the three organs of governance, to ensure that none of the three become too powerful.
   • Fundamental regulations and principles: Constitution is the embodiment of fundamental regulations and principles according to which the country, state, and its people are supposed to work.
     • Example – irrespective of who is the President of India, the powers and functions of the Office of the President remain the same.
   • Smooth functioning of the Nation: rules and regulations lay down the base of the nation so that it can run without any threat of a civil breakdown.
   • Apex body: A Constitution is superior to all the laws of the country which means any law or provision that is circulated in the nation is passed down by the constitution itself.
   • Goals of a Country: The Constitution lays down the national goals of any country such as, Democracy, secularism, Socialism, and National Integration.
2. Importance for Government
   • Limitations on government: The Constitution imposes limitations on what a government can impose on its citizens. E.g., fundamental rights.
   • Source of Authority for Government formation: The Indian Constitution clearly specifies that India will have a democratic form of government indicating that the people of the country will chose the Government.
   • Relation between Center and States: E.g., 7th Schedule which defines domains of both center and states.
   • Role of Government: is derived as per the provision of the constitution.

1. Importance for Citizens
   • Duties: Constitution defines the duties of the citizens. E.g., Article 51 A.
   • Rights: The constitution of a country guarantees some rights and provision for any individual or group of people like right to life, right to freedom, right to participate freely in the democratic system.
   • Promotes Peace and security: by promoting fraternity among the citizens.
   • Equality: Constitution promotes equality between citizens from different sections of the society.
   • Aspirations of a society: Constitution also enables the government to fulfil the aspirations of a society and create conditions for a just society. E.g. eradicate caste inequality.
   • Fundamental identity of the people: The Constitution expresses the fundamental identity of the people. By agreeing to a basic set of norms one’s political identity is formed. It defines the fundamental values one cannot trespass so it gives us a moral identity also.

What is Constitutionalism?

Users are requested to not get confused with the name and read this topic as ‘Limited Government’

1. Meaning:
   • Constitutionalism is the doctrine that a government authority is determined by a body of laws or constitution. It refers to efforts to prevent arbitrary government. It prevents the government from turning the democratic setup into dictatorial and authoritative.
   • ‘Constitutionalism’ means limited government or limitation on government. Constitutionalism recognizes the need for government with powers but at the same time insists that limitation be placed on those powers.
   • It ensures that the freedoms of the individual are given primacy and the State does not encroach upon the liberty of the citizen.
2. Constitution vs Constitutionalism?
   • The Constitution is a document that contains rules regarding the structure of the government of a country and the governance of the country. The government is bound to follow the Constitution during its reign as ruling power and cannot violate it. The limitations on the government through these rules and regulations slowly add up to the concept of Constitutionalism.
   • Constitutionalism says that the Constitution of a country should have restrictions laid down in it to protect the freedom of the citizens of the country, and to make sure the government does not go beyond its authority.
   • A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had a constitution but that does not mean that it adhered to the philosophy of Constitutionalism.
3. Acceptance of Constitutionalism in India
   • S.R. Chaudhuri v. State of Punjab (2001): Supreme Court said the mere existence of a Constitution, by itself, does not ensure constitutionalism. Constitutional restraints must not be ignored if found inconvenient to suit “political expediency”. We should not allow the erosion of principles of constitutionalism.
   • New India Assurance Company Ltd. v. Nusli Neville Wadia (2007): Court said that “For proper interpretation of Constitutional provisions not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein.”
   • IR Coelho versus state of Tamil Nadu: The court held that “constitutionalism is a legal principle that requires control over the exercise of government power to ensure that the democratic principles on which the government is formed shall never be destroyed.”
   • Rameshwar Prasad v. Union of India: The concept of constitutionalism has been recognised by the Supreme Court.
4. Basic elements of constitutionalism are:
   • Popular sovereignty: Public is the source of all government authority. The legitimacy of any power is derived from the consent of people.
   • Separation of power: Power is not concentrated in any one organ of the state. It’s diffused among legislature, executive and judiciary.
   • Responsible and accountable government: The government assumes power on behalf of the public for the benefit of the public and hence is responsible and accountable to the public which can vote it out in free and fair elections.
   • Rule of law: Rule of law denotes a government of laws and not of men.
   • Independent judiciary: Independent judiciary maintains the supremacy of the Constitution, and upholds Individual rights.
   • Ensure and respect individual rights: The incorporation of rights of individuals in the Constitution in form of Fundamental rights is constraint on powers of government.
   • Civilian control of military: The democratically elected government is allowed to govern and control the military, hence limiting the power of armed forces.
   • Police governed by law and judicial control: Constitutionalism requires the police to honour and respect the rights, dignity and freedom of individuals including wrongdoers and people suspected of offence. Every person is presumed innocent until proven guilty subject to some exceptions.

The design and character of the Indian Constitution ensure that the powers of the Executive and the Legislature are limited so that the discretion given to these organs does not turn into arbitrariness. The Fundamental Rights, the basic structure, federal setup of the administration, the amendment procedure, all limit the powers of State in a particular way.

What are the salient features of the Constitution?

1. Lengthiest written constitution: It consists of 448 Articles divided into 25 parts and 12 schedules.
2. Drawn from various sources: like Government of India Act, 1935, USA’s constitution, Irish constitution, British constitution among others.
3. Blend of rigidity and flexibility: Some provisions can be amended by a special majority of the Parliament while others need special majority and ratification by at least half of the states.
4. Federal system with unitary bias: The Constitution has federal features such as dual government polity, division of power, written constitution and supremacy of Constitution. But it also has unitary features such as strong Centre, single constitution, single citizenship and appointment of governors by the Centre etc.

(Can you write all provisions of unitary bias in Indian Constitution?)

1. Parliamentary form of government: The features of Parliamentary government in India are: Presence of nominal and real executive, Majority party rule, Collective responsibility of executive to the legislature, Executive is a part of the legislative branch, Leadership of Prime Minister or chief minister, Dissolution of lower house.
2. Synthesis of Parliamentary sovereignty and judicial supremacy: Supremacy of Parliament is associated with British constitution and judicial supremacy is associated with American constitution. The Supreme Court can declare laws of Parliament unconstitutional. The Parliament can amend major portions of Constitution.
3. Integrated and independent judiciary: A single system of courts enforces both central as well as state laws unlike in USA.
4. Fundamental rights: Part three of the Constitution guarantees six fundamental rights to all citizens. The fundamental rights are meant for promoting the idea of political democracy. Fundamental rights are subject to reasonable restrictions.
5. Directive principles of state policy: Dr BR Ambedkar defined DPSP as novel feature of Indian constitution. They are meant for promoting idea of social and economic democracy. They seek to establish a welfare state in India.

1. Fundamental duties: to guide citizens on their basic duties towards the citizens and nation.
2. Secular state: The Constitution does not uphold any particular religion as the official religion of India. The secular nature of the Indian state can be seen from Preamble, Article 14, Article 15, Article 16, Article 25, and Article 26 and so on.
3. Universal adult franchise: Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, religion, race, sex, literacy, wealth and so on.
4. Single citizenship: Unlike in USA where each citizen is not only a citizen of USA but also of a particular state, in India the Constitution envisages single citizenship.
5. Independent bodies: The Constitution establishes certain independent bodies such as the Election Commission, CAG, UPSC etc.
6. Emergency provisions: The constitution contains emergency provisions to deal with extraordinary situations. The Constitution envisages three types of emergency.
   • National emergency on grounds of war or external aggression or armed rebellion under Article 352.
   • President’s rule on the ground of failure of constitutional machinery in the state under Article 356 or failure to comply with direction of Centre under Article 365.
   • Financial emergency on the ground of threat to financial stability or credit of India under Article 360.
7. Three tier government: The 73rd and 74th Constitutional Amendment act, 1992 added a third tier of government which is not found in any other Constitution of the world.

At the time of its birth, constitutional experts of world did not expect our Constitution to survive very long. However our Constitution has proved to be the most enduring document of governance and its durability arises from the basic commitment, experience of makers and the fact that it is a living document that holds onto a basic structure while at the same time responding to the changing needs of the society.

BASIC STRUCTURE

Basic structure doctrine is propounded by the Indian Judiciary in Keshavananda Bharati case verdict on 24th April, 1973. It is a judicial principle that states that the constituent power of parliament is subject to inherent limitations. Parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution. The word “Basic Structure” is not mentioned in the constitution of India, it is a judicial innovation. However, the court has not explicitly defined what comprises under basic structure. It is a dynamic and living concept. Till now, SC judgements across various cases have cited following as part of basic structure: Rule of law, judicial review, federalism, secularism [S R Bommai’s case], Fundamental rights, Article 32, balance between FR and DPSP [Minerva Mills’s case]

Emergence/Evolution

1. Shankari Prasad case (1951):
   • Background: In this case the constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.
   • Judgement: Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.
   • Reasoning: The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts.
2. Golak Nath case (1967):
   • Background: The constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.
   • Judgement: The Supreme Court reversed its earlier stand and ruled that the Fundamental Rights are given a “transcendental and immutable” position and hence, the Parliament cannot abridge or take away any of these rights.
   • Reasoning: A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.
3. Keshavananda Bharati Case:
   • Background: The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.
   • Judgement: The Supreme Court overruled its judgement in the Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution.
   • Reasoning: It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

Importance

• Upholds constitutionalism: Since it is dynamic, it prevents the threat of regression.
• Upholds democracy: The ideas and values of founding fathers are preserved in both letter and spirit. Upholds role of judiciary as the final interpreter of constitution.
• Ensures checks and balances: By limiting the power of parliament.
• Safety valve against majoritarianism and authoritarianism: the basic structure doctrine is useful to apply the brakes, when the engine of amending power threatened to overrun the constitution.

Criticism

1. No separation of power: Judiciary is interfering with the legislative field.
2. Not a part of constitution: The founding fathers did not make such a provision.
3. Tyranny of the unelected: Judiciary has given unprecedented power to itself.
4. Ultimate legal sovereignty resides in people: Therefore, if amendments were to help Constitution to survive, they must include changes in allegedly essential or basic part of Constitution.

However, it is true that the Basic structure doctrine has helped Constitution to save it’s supremacy. The success of it can be seen in its increasing use by judiciary. This doctrine is also recognised in Bangladesh, Pakistan, Uganda and Kenya as well.

COMPARISON OF INDIAN CONSTITUTION WITH OTHER DEMOCRACIES

UNITED STATES

Similarities

1. Constitutional
   • Written Constitution: Both nations have a written constitution; the Indian constitutional existence is also credited to the written text of the USA’s Constitution.
   • Preamble: Both nations have a preamble as their introductory statements to their constitutions.
   • Fundamental Rights: Both nations have the concept of Fundamental rights in their constitutions, in the US, enumerated rights that are incorporated are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.
   • Emergency Provisions: Emergency can be declared on the ground of War and Armed Rebellion, US does not use the phrase of emergency but says that in case of Rebellion and Invasion of Public Safety, the writ of Habeas Corpus can be suspended.
   • Office of Vice President: Both nations have the office of the vice president, with the US asserting more powers and importance to the post than India.
2. Legislature and Executive
   • Elected Governments: Both nations operate on different political models but both have elected representatives and 2 houses of legislature.
   • State Representation: Both nations have representations from their states in the central legislature.
   • Powers of Defence and Diplomacy: General regulation of major foreign policy issues and defence of the country is vested in the central/federal governments of both nations.
   • Impeachment of President: Both nations have provisions for the removal of the President through impeachment motion in the legislature.
3. Judiciary
   • Judicial Review: According to this power, the Supreme Court of the USA can reject or abrogate any law which does not suit the constitution of the USA or violate the Constitution, similar provisions exist in India.
   • Due Process of Law: Both nations hold the principle of due process or “the Government cannot deprive anyone of life, liberty or property without due process of law. In India, the concept came with a wider interpretation in the Maneka Gandhi case.
   • Separation of Powers: There is a legislative, executive, and judicial branch that each has their own different but equally important duties. In case of India, there is a separation of functions along with a system of checks and balances.
   • Independence of Judiciary: Both nations have judiciaries which are independent from the working of the other organs of the state.

Differences

1. Constitutional
   • Political Model: The president is the head of the state in the U.S. and thus his administration is popularly referred to as the presidential form of government. India, on the other hand, has a legislative system of government, while the Prime Minister exercises real power with his cabinet, with the President being only a nominal head.
     • Election: In the US, the President is elected directly, whereas in India he is elected indirectly.
   • Amenability: The US Constitution has only been changed 27 times in over 200 years since the procedure is rigid and difficult to pass. Whereas the Constitution of India, which entered into force in 1950, has so far been amended 105 times.

1. Legislature and Executive
   • Citizenship: The Indian Constitution recognizes single citizenship. On the other hand, the United States Constitution allows for double citizenship that can be a US resident of two countries, the United States and another.
   • Residuary Powers: In India, the residuary powers not mentioned in the Schedule VII are vested in the union, whereas in the US it is vested with the states.
   • Representation of States: In India, representatives to the Rajya Sabha are based on the state’s population, whereas in the US Senate all states have equal representation.
   • Houses of Legislature: Whereas the Lok Sabha and lower house in India are stronger, the Senate House or the upper house is stronger in the United States.
   • Party Structure: In the US, there is a presence of very few parties, mostly the Democrats and the Republicans whereas in India there is presence of multiple parties.
2. Judicial
   • Judicial Tenure: While a judge in the United States can hold the post for life as long as he enjoys good health, it is different in India where judges have retirement ages.
   • Supreme Court: Every state in the US has its own Supreme Court as the highest court of appeal for most cases, and the federal Supreme Court only for select federal cases but in case of India, there is integrated judiciary with one Supreme Court.

GREAT BRITAIN

Britain does not have a formal written constitution and operates through its historical conventions and traditions and legislations

Similarities

1. Political Conventions
   • Political Model: Both UK and India operate on the Parliamentary model of democracy with a bicameral legislature.
   • Rule of Law: Both nations assert primacy to rule of law, or laws are paramount before anything else, and only those created through rule of law enjoy legitimacy.
   • Amenability: The British laws can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, similar to some of the provisions in the Indian constitution.
2. Legislature and Executive
   • Cabinet System: Both India and UK have the presence of a cabinet system of inner ministers holding various portfolios.
   • Dual Heads of Government: First head, as head of the state. He represents the nation and provides continuity to the administration. Second head is the head of the government.
   • Collective Responsibility: In the cabinet system, there is a principle of collective responsibility; hence other ministers are also important.
   • Party Structure: Both India and the UK have multiple parties represented in the lower house of the parliament.
3. Judiciary
   • Removal of Judges: In the UK, judges can only be removed from office for serious misbehaviour and according to a procedure requiring the consent of both the Houses of Parliament similar to that in India.

Differences

1. Conventional
   • Type of Model: UK is a constitutional monarchy with a regent at the top whereas in India we have a Republican form with the indirectly elected President at the top.
   • Constitution: Britain has no written constitution and operates on conventions and traditional laws, whereas India has a written constitution.
   • Federalism: India is a federal system with unitary bias. But UK is a unitary state and all powers are vested in a single supreme Central Govt.
   • Parliamentary Sovereignty: UK’s parliament is sovereign in the sense of constitutional sovereignty; their powers are not limited by a constitutional document, whereas Indian Parliament is limited by the constitution itself.
   • Prime Minister: In the UK the Prime minister has to be elected from the lower house unlike in India, where he can be elected from either house.
2. Legislature and Executive
   • Hereditary Members: The house of lords also has hereditary members holding titles, where in India Article 18 prohibits any person to hold any titles or have hereditary claims to political positions.
   • Speaker: In the UK, there is a convention that once a Speaker, always a Speaker, thus a former speaker holds no political membership, whereas in India speakers usually remain members of their parties.
   • Citizenship: The Indian citizenship & nationality law does not allow dual citizenship. But in the UK one does not need to give up his/her present citizenship or nationality to become a British citizen.
   • Religious Presence: The upper house in the UK has members of the church as members, whereas in India we find no such clause for religious members or organisations.
3. Judiciary
   • Judicial Review: Judicial review is the basic structure of constitution and parliament is not sovereign, instead people of India are Sovereign. But in the UK, Parliament is sovereign and no such review exists.
   • Nature of Judiciary: The United Kingdom does not have a single unified legal system with England, Scotland, Wales all having different structures, but India has an integrated judiciary.
   • Separation of Powers: In the UK, there is no real separation of powers but rather a fusion of powers unlike in India where separation of power exists to a larger extent.

FRANCE

Similarities

1. Elected Government: Both France and India have elected heads of state for respective terms. Indian PM has a term of 5 years, whereas French president for 7 years.
2. Amenability: French constitution can be amended with a 60% majority similar to Indian process of amendment.
3. Written Constitution: Both nations have written constitution, but France is currently following its 5th constitution in history due to previous instabilities.
4. Republic: Both nations are Republic with the elected heads of state.
5. Ideals: Indian Constitution has enshrined the values of liberty, equality and fraternity from the French ideals.

Differences

1. Secularism: France adopted complete separation of State from religion, while Indian secularism is more of a principled distance but not complete separation.
2. Political Model: French political model is that of Semi Presidential with the President having more powers than the PM but in India we follow Parliamentary form of Government.
3. Federalism: France operates on a unitary model of State rather than Federalism as in India.
4. Types of Courts: The courts in France are also divided into two parts – the judicial courts (those dealing with criminal and civil laws), and the administrative courts. In India no such distinction exists.
5. Constitutional Council: This branch oversees review of statutes before they are enacted as well as overseeing national elections in France. In India, the judiciary plays no role in conducting elections.

JAPAN

Similarities

1. Constitutional
   • Written Constitution: Both India and Japan operate by the written constitution in their political model and legislature.
   • Parliament: Both nations have a parliament as the highest legislative body. In Japan it is known as the Diet.
   • Bicameralism: Both nations have 2 houses of parliament with the lower house being more powerful than the other.
   • Dissolution: Early dissolution in Japan, like India, may occur either when the government loses the confidence of the lower house or when the prime minister seeks to increase his or her party’s strength in parliament.
2. Legislature and Executive
   • Money Bills: Similar to India, the Japanese upper house can only block the passing for a specific time period, but final power lies with the lower house.
   • Membership of PM: The PM can belong to either of the houses of the National Diet.
   • Responsibility: The council of Ministers has responsibility only to the lower house, which is similar to India.
   • Upper House Membership: In Japan, Upper house members have a term of 6 years and every year half the members retire. In India, they have a term of 6 years but 1/3rd members retire every two years.
3. Judiciary
   • Appointment of Chief Justice: The Chief Justice is appointed by the Constitutional head in both nations, the monarch in Japan and the President in India.
   • Removal of Judges: Similar to India, Japanese Diet is responsible for initiating impeachment for the judges of their higher judiciary.
   • Procedure Established by Law: One of the critical features that is borrowed from the Japanese constitution is the “procedure established by law”.
   • Retirement Age: Both India and Japan have fixed retirement ages for judges.

Differences

1. Constitutional
   • System of Government: India is a Federal polity with a Republican President at the top whereas Japan is of unitary nature with a constitutional monarch at the head.
   • Amendments: In Japan, Constitutional amendments require to be passed by the public through a referendum but in India it is done by Parliament subject to the Basic Structure Doctrine.
2. Legislature and Executive
   • Cabinet Members: Cabinet is appointed by the President on the recommendations of the PM in India; In Japan the PM appoints his cabinet.

AUSTRALIA

Similarities

1. Constitutional
   • Written Constitution: Australia has a written constitution. The Australian Constitution defines the responsibilities of the federal government similar to that in India.
   • Federal System: Both India and Australia are Federal Parliamentary nations with states and territories.
2. Legislature and Executive
   • Second Readings: Bills can be subjected to second readings by committees which can also suggest amendments just like in India.
   • Concurrent List: As in India, Australia has a concurrent list where central laws prevail over that of the state in case of conflict.
   • Joint Sitting: In Australia, The Constitution makes provision for a joint sitting as part of a procedure to resolve legislative deadlocks between the House of Representatives and the Senate; same is the case in India.
3. Judiciary
   • Final Court of Appeal: Just like in India, The Supreme Court of Australia is a final Court of Appeal in Australia in all matters, Civil, Criminal and Constitutional.
   • Equality before Law: In the context of equality before the law, a number of decisions of the Australian High Court have drawn upon opinions in the Supreme Court of India.
   • Appointment of Judges: In Australia, at the Federal level judges are appointed by the Governor General, having been selected by Cabinet similar to in India where the President appoints on the selection of Cabinet.
   • Removal of Judges: Governor-General like the Indian President removes, on an address from both Houses of the Parliament for such removal on the ground of proved misbehaviour or incapacity.
   • Separation of Powers: Both nations have an independent judiciary and emphasises on the separation of powers.

Differences

1. Constitutional
   • Political System: In Australia, the head of the State is the King of Australia i.e. H.M. King Charles III, who is represented by a Governor General, whereas in India, it is the President who is indirectly elected.
   • Amenability: The Australian Constitution can be amended only with the approval of the electorate through a national referendum in which all adults on the electoral roll must participate. In India, it is done by the Parliament.
   • Voting: Voters vote for lower house representatives with compulsory preferential system or they have to give preference to each candidate on the ballot paper. In India, we follow First Past the Post System.
2. Legislature and Executive
   • Upper House membership: In Australia, the upper house is elected through the list system, whereas in India through single transferable vote.
   • Term of Legislators: In the lower house of Australian Parliament legislators hold the term for 3 years compared to 5 years in India.

CANADA

Similarities

1. Constitutional
   • Federal Structure: Both Canada and India have a federal structure with a unitary bias with a strong centre and federated states.
   • Residuary Powers: Like India, In Canada the residuary powers lie with the centre and not the states.
   • Appointment of Governors: Like India, Canada’s central government appoints the governors of the states and provinces.
2. Legislature and Executive
   • Manner of Election: Members are elected by the first-past-the-post system (as in India) in each of the country’s electoral districts.
   • Lower House: As in India, the Canadian lower house is more powerful than the upper house.
   • Responsible Government: Cabinet is collectively responsible to the elected House of Commons and must resign if it loses a vote of confidence, is a fundamental, but unwritten, element of Canadian parliamentary democracy.
   • Domain Legislation: Parliament can make laws for all of Canada, but only about matters the Constitution assigns to it just like in India.
3. Judiciary
   • Advisory Jurisdiction: The highest court exercises Advisory Jurisdiction in both the countries.
   • Appointment: The judges are appointed by the Governor General on the recommendation of the government as done in India.

Differences

1. Constitutional
   • Constitution: Canada is guided by both a written constitution and various unwritten laws which is not the case in India.
   • Head of Government: In Canada, the executive authority is formally vested in the Crown i.e. H.M. Charles III, and it is exercised in his name by the Governor General acting on the advice of the P.M. and the Cabinet.
   • Dual Citizenship: Canadians are allowed to take foreign citizenship while keeping their Canadian citizenship. However in India we have single citizenship.

1. Judiciary
   • Multiple Legal Systems: Canada’s legal system is based mainly on English common law, but in the province of Québec, it is modelled on French civil law, but in India, there is uniformity of legal system.