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Constitution and constitutionalism

Constitution and constitutionalism

The word “ constitution “ means a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of the govt. of the state and declares the principals governing the operation of those organs.

In other words constitution is a set of laws and rules setting up the machinery of the govt of a state and which defines and determines the relations between the different institutions and ares of the govt. viz, the executive, the legislature, the judiciary, the central, the regional and local governments.

Constitutionalism recognises the need for govt. but insists upon limitations being placed upon govt powers ....

The constitutionalism connotes in essence the “ limited government . “

There may be some cases where constitution is present but constitutionalism is not for example where dictator’s word is law, can be said to have a constitution but not constitutionalism

The making of Indian constitution

The constitution of India was framed by the constituent assembly, which was set up in 1946 under the provisions of cabinet mission plans.

The constituent assembly held its first meeting on December 9, 1946. Where Dr. Sachidanand Sinha the oldest member of the assembly, was elected as the temporary president till the permanent president is elected.

On December 11, 1946 Dr. Rajendra Prasad and Dr. H.C Mukherjee were elected as the president and the vice-president of the constituent assembly.

Objective resolution

On December 13, 1946 Pt. Jawahar Lal Nehru moved the objective resolution in the assembly these were —

◦ To make India to be sovereign republic

◦ To establish India as a democratic union with an equal level of self-govt. for all the status.

◦ All the powers and authorities of central governments and state governments to be derived from the people.

◦ To guarantee and secure to all the citizens —-

Justice - social , economic and political,

Equality - status, opportunity, and equality before law

Freedom - of thoughts and expression

And belief, faith, worship, vocation, association and action.

◦ To maintain integrity of territory of the republic and sovereign rights on lands, sea, and air accordingly as justice and law of civilised nations.

◦ Adequate safeguard for minorities, backward classes and scheduled caste and scheduled tribe and tribal areas.

◦ To contribute to the promotion of international peace and security.

◦ To have for India a rightful honoured and dignified place in world platform.

The constituent assembly adopted these resolution on January 22, 1947.

Different sources of Indian constitution—

Indian constitution makers studied the constitution of several democratic countries and adopted whatever material they could found useful to suit the Indian circumstances and aspirations. Our constitution borrowed a great deal from the constitution of other countries. Eg. UK, USA, USSR(Russia), canada.

The govt of India act 1935 —

◦ Federal scheme i.e., centre state relation

◦ Office of governor

◦ Executive function

◦ Judiciary

◦ Public service commission

◦ Emergency provisions etc.

British constitution —

◦ Parliamentary form of the govt.

◦ legislative procedure i.e., law making procedure

◦ Single citizenship

◦ Cabinet system

◦ Writs

◦ Parliamentary privilege

◦ Rule of law

◦ Bicameralisms

◦ Parliamentary system with ministerial responsibility etc.

U.S. constitution —

◦ Fundamental rights

◦ Independence of judiciary

◦ Judicial review

◦ Impeachment of president

◦ Removal of Supreme Court and high court judges

◦ President as executive head

◦ President as supreme commander of armed force

◦ Vice President as ex-officio chairman of the council of states

Canadian constitution —

◦ Federation with strong centre

◦ Appointment of state governor by centre

◦ Residuary power in the hands of centre

◦ Advisory jurisdiction of the Supreme Court etc.

Irish constitution —

◦ Directive principles of state policy

◦ Method of election of president

◦ Nomination of members of Rajya Sabha by the president.

Australian constitution —

◦ Provision regarding freedom of trade of trade trade, commerce, and intercourse.

◦ Concurrent list

◦ Joint sitting of the two houses of the parliament etc.

Soviet constitution, USSR,

Now Russian constitution —

◦ Fundamental duties

◦ Ideal of justice enumerated in the preamble i.e., social, economic, and political justice.

South African constitution—

◦ Procedure for amendment of the constitution

◦ Election of members of Rajya sabha

Weimer constitution of Germany —

◦ Suspension of fundamental rights during emergency

French constitution —

◦ Republic and the ideals of liberty, equality , and fraternity in the preamble.

Japanese constitution —

◦ Procedure established by law.

Salient features of the constitution —

The Indian constitution is unique in its content and sprit. Though borrowed from almost every constitution of the world, the constitution of India has several salient features that distinguish it from the constitution of other countries.

Lengthiest written constitution —

It is the lengthiest constitution ever given to any nation. It is a very comprehensive document and includes many matters which could legitimately be the subject matters of ordinary legislation or administrative action. This happened because the government of India act, 1935.

Written or unwritten —

Constitution may be written like US constitution or unwritten like British. It originally contained 395 Articles and 8 schedules. It presently contains 395 Articles (total number-444) divided into 22parts and 12. Schedules.

Rigid or flexible: —

Constitution may be called rigid or flexible on the ground of the amending procedure being difficult or easy.

Federal constitution are usually classified as rigid because of there difficult amending processes.

Indian constitution may be said to be a combination of rigid and flexible inasmuch as certain provision of the constitution can be amended like ordinary legislation by simple majority in the House of Parliament, other provision can be amended by a special majority.

Parliamentary or presidential system of government —

India is a republic (i.e. the supreme power rests in all the citizens entitled to vote- the electorate and is exercised by representatives elected directly or indirectly, by them and responsible to them) and president is the executive head. He’s also a supreme commander of the armed force. However unlike the US president, Indian president is only nominal or constitutional head of the executive; he acts only on aid and advice of the real political executive which is the council of minister.

Parliamentary sovereignty v judicial supremacy —

In India, the constitution has arrived at a compromise between the British sovereignty of parliament and American judicial supremacy we are governed by the rule of law and judicial review of administrative action is an essential part of rule of law. Thus, court can determine not only constitutionality of the law but also the procedural part of the administrative action . Both parliament and and Supreme Court supreme in there respective sphere. While the Supreme Court are supreme may declare a law passed by parliament ultra-vires as being violative of the constitution, parliament may within certain restrictions amend most parts of the constitution. (Case : state of Bihar v Subhash Singh AIR 1997 SC 1390)

Adult franchise —

Dr. Ambedkar said in the constituent assembly that by parliamentary democracy we mean ‘one man, one vote’. Almost as act of faith, the founding fathers decided to opt for ‘universal adult suffrage’ with every adult Indian without any distinction at once having equal voting rights. This was particularly remarkable in the context of the vast poverty and illiteracy of the India populace.

Secular state —

India has been declared secular state because of its policy of non-discrimination towards any religion. All religions are held equally in high esteem by the state and there is no state religion (unlike a theocratic state) or a preference for a particular religion.

Charter of fundamental rights —

Fundamental rights incorporated in part third of the constitution are the inviolable rights of the individual against the state. Any law or executive action depriving an individual citizen of his freedom.

For example: can be challenged in Supreme Court or high court. The constitution always lays down the machinery and mechanisms for the enforcement of these rights.

Directive principles —

The DPSP inspired by the Irish precedent, and a unique feature of our constitution. Most of the socio-economic rights of the people have been included under this head. Even though said to be not enforceable in courts of law, these principles are expected to guid the governance of the country. They are in the nature of ideals set by the founding fathers before the state and all the organs of the state must strive to achieve them. In recent years, the DPSP have increasingly assumed greater relevance and importance not only for the legislature but also in the eyes of the courts.

Fundamental duties —

The 42nd amendments to the constitution inter alia added a new part to the constitution under the head fundamental duties. It lays down a Code of ten duties for all the citizens of India. Inasmuch as there can be no rights without corresponding duties and rights of citizens have no meaning without respect for political obligations of the citizens toward the state, it is unfortunate that the code of fundamental duties of the citizens has not so far been accorded the importance it deserves.

Citizenship —

The population is divided into two classes: citizens and non-citizens. Non-citizens or aliens do not enjoy all rights granted by the constitution.

Indian citizens exclusively possess the following rights:

1. Some of the fundamental rights viz. Article 15, 16, 19, 29 and 30.

2. Only citizens are eligible for offices such as those of the president [Art. 58]; vice-president [Art. 66]; judge of Supreme Court [Art. 124]; or a High court [Art. 217];Attorney general [Art. 76]; governor [Art. 157].

3. The right to vote [Art. 326]; the right to become a member of parliament [Art. 84]; and state legislature [Art. 191.

It may be noted that the rights guaranteed by arts. 14 and 21 are available to aliens also. The enemy aliens, however, suffer from a special handicap.

They are not entitled to benefit of Article 22.

Independent judiciary —

The constitution of India establishes an independent judiciary with powers of judicial review. The high courts and the Supreme Courts from a single integrated judicial structure with jurisdiction over all laws - Union, state, civil, criminal, or constitutional. Unlike the US., we do not have separate federal and state court systems. The entire judiciary is one hierarchy of courts. It not only adjudicates disputes and acts a custodian of individual rights and freedoms but also may from time to time need to interpret the constitution and review legislation to determine its vires vis-a-vis the constitution.

Union and it’s territories—

The constitution of India does not protect territorial integrity of states. Part one of the constitution comprising Articles 1 to 4 provides a self-contained mechanisms for affecting changes in the constitution of the states or union territories of the union of India. There are at present 29 states and 7 union territories in the union of India.

Special status of Jammu and Kashmir —

By the virtue of Art. 370 of the constitution, the state of Jammu and Kashmir enjoys a special status within the Indian union. It is the only state possessing a separate constitution which came in to force on 26th January, 1957. However, it is included in the list of states in the first schedule of the constitution of India. The jurisdiction of parliament is limited to the matters in the union list and only some matters in the concurrent list.

The provisions of the Indian constitution did not automatically apply to Jammu and Kashmir. They were gradually made applicable (some in modified from) under Art. 370. Art. 370 was incorporated in the constitution in pursuance of the commitment made by Pandit Jawahar lal Nehru to maharaja Hari Singh in October 1947 at the time of signing the instrument of accession of Jammu and Kashmir to India.

Article 370(1) stipulates, “notwithstanding anything in this constitution —

1. The provision of article 238 in part 7 (which was subsequently omitted from the constitution by seventh amendment in 1956) shall not apply in relation to the state of Jammu and Kashmir.

2. The power of parliament to make laws for the said state shall be limited to those matters in the union list and concurrent list which, in the consultation with the government of the state, are declared by he president to correspond to matters specified in the instrument of accession governing the Accession of the state to the domination of India as the matter with respect to which the domination legislature may make law for the state; and such other matters in the Said lists, as with the concurrence of the govt. of the state, president may by order specify.

3. The provision of article 1 of this constitution shall apply in relation to that state;

4. Such other provisions of this constitution shall apply in relation to that state subject to such exceptions and modifications as the president may by order specify.

Panchayati Raj and Nagar Palika Institutions —

The constitution 73rd amendment Act, 1992 and the 74th Amendment act, 1992 have added new parts IX and IX-A to the constitution. Under these two parts, 34 new articles (234 to 243-ZG) and two new schedule (XI and XII) have been added.

essentials features of federalism —

1. Duality of government and distribution of power - the basis distribution of powers between centre and state governments is that in matters of national importance, authority is entrusted in the union, and matters of local importance remain with the state.

2. Supremacy of constitution - every power, executive,legislative or judicial whether it belongs to the centre or the state is subordinate to and controlled by the constitution.

3. A written constitution - the supreme constitution is essential if government is to be federal, and a written constitution is essential if the federal government is to work well.

4. Rigidity of constitution - in a rigid constitution, the procedure of amendment I’d very difficult, and the power of amendment does not remain exclusively with either central or state governments.

5. Authority of courts - the judiciary, in a federal polity, has the final power to the constitution and guard the entrenched provision of constitution.

Unitary features of Indian constitution —

The following matters, it is pointed out, the Indian constitution modifies the strict application of federal principle: —

Legislative relations -

◦ under the article 249, parliament is empowered to make laws with respect to every matter enumerated in the state list, if it is necessary in the national interest.

◦ Under the Article -254 if there is any inconsistency between laws made by parliament and laws made by legislature of the states than laws made by the parliament will prevail.

Administrative or executive relation -

◦ On plannings are at union level (via- Niti Aayog), the states only implement the plans formulated by the union.

◦ Further there is all India services, and the persons appointed under the these services by the UPSC, are sent to the states. Centre through IAS, IPS, IRS, IES, etc. controls state administration indirectly.

Financial relations —

◦ The states depends largely upon financial assistance from the union (through grants-in-aids). The more important taxes like income tax, wealth tax, excise duty, are being reserved to the union.

◦ Power of taxation conferred by various entries under list 2nd on the state is also very restricted.

Formation of new state —

◦ Only parliament has power to formed new state and power to alter boundaries of existing state.

◦ The very existence of the state thus under article 3 depends upon the sweet will of the union.

Appointment of the governor —

◦ The governors of the state are appointed by the president and answerable to him. They hold office at the pleasure of the president.

◦ Practically we have seen most of the time governors act in a manner suitable to the president even at the cost of the interest of the states of which they are governor.

Emergency provisions —

Under emergency, the normal distribution of powers between the centre and the states under undergo a vital change (in the favour of the centre). Under article 356 the state legislature can be dissolved and president rule can be imposed either on the governors report or otherwise when there is failure of the constitutional machinery in state.

Single and uniform citizenship—

◦ There is single citizenship for the whole country.

◦ Only parliament has power to make laws regarding citizenship.

Uniform and integrated judicial system -

◦ There is single judiciary and Supreme Court is a guardian of constitution.

Inter-state council —

If at any time it appears to the president that the public interests would be served by the establishment of a council charged with the duty of —

◦ Inquiring into an advising upon disputes which may have arisen between states

◦ Investigating and discussing subjects in which some or all of the states, or the union and one or more of the states, have a common interest.

Conclusions: Indian federalisms is ‘unique’ —

India adopted a federal structure as the different Parts of the country were at different stages of development and it would have been difficult to control from one centre; and to ensure minorities their due place.

However, the Indian federalism is unique because of its mode of formation i.e.from union to states (creation of autonomous units and then combining them into a federation), and not vice Versa. It is to be noted that term ‘union of states’ (Article 1) and not ‘federation’ is used in the constitution.

Also, the units have no right to secede (as in confederation)

The constitution of India is nighter purely federal nor purely unitary, but is combination of both. It is the union of composite states of of a novel type. Nighter the parliament not the state legislation is ‘sovereign’ because each being limited by the constitutional provisions affecting the distribution of powers the constitution enshrines the principle that in spite of federalism, the national interest ought to be paramount. Thus, the Indian constitution is mainly federal with unique safeguards for enforcing national unity and growth.

The scope of application of federal principle in India is shown by the scope of state legislatures. However, Indian federation is not defective; the defect is political because there is a conflict between opposition-party ruled states and central government. Also, federalism is not dead in India, as evidenced by the fact that new regions are demanding statehood and union has yielded, thus state like Manipur, Tripura, Goa etc. have been created moreover, in spite of conflicts, the opposition party ruled states do exist.

Schedules to constitution —

First schedule - territorial demarcations of states and union territories.

Second schedule - provisions as to president and governors.

Third schedule - forms of oaths and affirmations.

Fourth schedule - allocation of seats in council of states (Rajya Sabha).

Fifth schedule - provisions for administration and control of scheduled Areas and STs.

Sixth schedule - provisions for administration of tribal areas in north-eastern states.

Seventh schedule - lists specifying distribution of legislative subjects between union and states.

Eights schedule - languages.

Ninth schedule - laws and regulations saved from judicial review.

Tenth schedule - provisions for disqualification on the ground of defection.

Eleventh schedule - provision for panchayat

Twelfth schedule - provisions for urban local self-government.

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