UNIT - I NATURE OF THE CONSTITUTION OF INDIA

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1 UNIT - I NATURE OF THE CONSTITUTION OF INDIA As per the usual classification given by the political scientists, constitutions are of two types i.e. unitary and federal. In a unitary constitution the powers of governance are centralised in one government viz., the central government. The provinces are subordinate to the centre. In a federal constitution, on the other hand, there is a division of powers between the federal and the state governments and both are independent in their own spheres. There is a difference of opinion amongst the constitutional jurists about the nature of the Indian Constitution. One view is that it is a quasi-federal constitution and contains more unitary features than federal. The other view is that it is a federal constitution with a novel feature adapting itself to emergencies. The view of the framers of the Constitution is that the Indian Constitution is a Federal Constitution. Dr. Ambedkar, the Chairman of the Constitution Drafting Committee, observed, I think it is agreed that our Constitution notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces (States) nonetheless, is a Federal Constitution. 1 But some constitutional jurists hesitate to characterize the Indian Constitution as federal. It is, therefore, necessary to ascertain firstly, what federal constitution is and what are its essential characteristics, and secondly, to examine whether our Constitution possesses those characteristics. Federal principle : Prof. K.C. Wheare 2 had observed that by the Federal Principle we mean the method of deriving powers, so that the central and state governments are each within a sphere co-ordinate and independent and not subordinate to one another. The American Constitution is universally regarded as an example of federal constitution. It establishes dual polity or dual form of government, i.e., the federal and the state governments. The powers of both the central and the state governments are divided and both are independent in their own spheres. The existence of co-ordinate authorities independent of each other is the gist of the federal principle. Prof. Wheare, after defining federal principle examined whether the American Constitution satisfies the above test. He has observed that the constitution of the USA itself, as originally drawn up, contained at least one exception to the federal principle i.e. the Senate was composed of representatives selected by the Legislatures of the States. Thus, a part of the general Government of the USA was dependent to some extent upon a part of the regional Government. This exception to the federal principle was maintained in law till Yet the American Constitution from was and must be called a federal constitution for the federal principle was predominant in it. Thus, the criterion is whether the federal principle is predominant in the constitution? If so, then the constitution may be called a federal constitution. If, on the other hand, there are so many modifications in the application of the federal principle then it ceases to be of any significance and then the constitution cannot be termed as federal. This appears to be the most instructive and responsible way in which to use the term federal constitution. It seems essential to define federal principle rigidly, but to apply the term federal constitution more widely. 3 Thus Prof. Wheare accepts that exceptions are permissible provided federal principle is predominantly retained in the constitution. Essential Characteristics of a Federal Constitution

2 A federal constitution normally has the following essential characteristics 1. Distribution of powers : The distribution of powers is an essential feature of federalism. Federalism means the distribution of the powers of the State among a number of coordinating bodies, each originating in and controlled by the Constitution. 4 The basis of such distribution of powers is that in matters of national importance, in which a uniform policy is desirable in the interest of the units, the authority is entrusted to the union, and in matters of local concern the authority remains with the states. 2. Supremacy of constitution : A federal State derives its existence from the Constitution. Hence, every kind of power, i.e. executive, legislative or judicial whether of the Union or of the States is subordinate to and controlled by the constitution. 5 The Constitution in a federal State constitutes the supreme law of the land. Prof. Wheare is of the opinion that the two features i.e. the supreme constitution and the written constitutions are essential features of a federal system. The supreme constitution is essential if the government is to be federal; the written constitution is essential if federal Government is to work well A Written constitution : A federal constitution must be a written constitution. It will be practically impossible to maintain the supremacy of the constitution, if it is not a written document. To base an arrangement of this kind upon understandings or conventions would certainly generate misunderstandings and disagreements Rigidity : A natural corollary of a written constitution is its rigidity. A constitution which is the supreme law of the land must also be reasonably rigid. In a rigid constitution the procedure of amendment is very complicated and difficult. This does not mean that the constitution should be legally unalterable. It simply means that the power of amending the constitution should not remain exclusively with either the central or state governments. A constitution of a country is considered to be a permanent document. It is the supreme law of the land. This supremacy of the constitution can only be maintained if the method of amendment is reasonably rigid. The constitution is a conceptual document designed on best conceptual researches and globally accepted principles of political and legal sciences. It can not be left for alteration by the special majority of political parties sitting in the legislature. 5. Authority of courts : In a federal state the legal supremacy of the constitution is essential for the existence of the federal system. The very nature of a federal state involves a division of powers between the central and state governments within the framework of the constitution. It is, therefore, essential to maintain this division of powers between the two levels of governments. This must be done by some independent and impartial authority above and beyond the executive and legislative bodies. In a federal polity judiciary has the final power to interpret the constitution and guard the constitution as a watch dog or sentinel. The Indian Constitution possesses all the essential characteristics of a federal constitution mentioned above. The constitution establishes a dual polity with the Union Government at one level and the State Government at the other. There is a division of powers between the Central and the State Governments. Each level of governance is autonomous in its own sphere. The Constitution of India is written and is supreme law of the land. The provisions of the constitution which are concerned with federal principles cannot be altered without the consent of the majority of the states. The constitution establishes a Supreme Court to decide disputes between the Union and the States, or between the States. It is the final interpreter of the Constitution. Some scholars do not consider the Indian Constitution as truly federal because according to them in certain circumstances the Constitution empowers the Centre to interfere in the matters

3 of the States and thus places the States in a subordinate position which violates the federal principle. 8 They, therefore, use such expressions for it as quasi-federal, unitary with federal features or federal with unitary features. Prof. Wheare is of the opinion that Indian Constitution establishes a system of government which is almost quasi-federal...a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features. 9 Prof. Jennings has characterised Indian Constitution as a federation with a strong centralising tendency. 10 In the following matters, it is pointed out, the Indian Constitution contains the modifications of the federal principle 1. Appointment of Governors : The Governors of the states are appointed by the President (Articles 155 and 156) and are answerable to him. This is, however, not a matter of much significance, for, the Governor is only the constitutional head of the State who shall normally act on the advice of his Ministers. There are provisions in the Constitution under which the Governor is required to send certain state bills for the assent of the President. The President has power to veto them e.g. Articles 200, 288(2). Whatever may be the situation, in practice there are not many examples when the President has vetoed the state bills. The only example has been the Kerala Education Bill. 11 But here also the Union obtained the advisory opinion of the Supreme Court before sending it back to the state legislature for suitable amendments in the light of the opinion of the court. 2. Parliament s power to legislate in the national interest : Under Article 249 Parliament is empowered to make laws with respect to every matter enumerated in the State List if the Council of the States passes a resolution by two-third majority that it is necessary in the national interest. There cannot be any objection to this provision. First, no one will deny that if a subject in the State List assumes national character, Parliament should make a law on it. In normal course this cannot be done unless the constitution is amended. But in this provision we have devised an expedient way by which without formally amending the constitution we can achieve the desired effect, namely, the acquisition by the Union of the power to administer and legislate upon a subject which has assumed national importance. Secondly, it should also be noted that this power is given to Parliament by the Council of States itself by passing a resolution supported by two-third majority of the members present and voting. Thus, in effect by this device the constitution is amended by the agreement of majority of the states. Obviously Article 249 does not place the state in a subordinate position. 3. Parliament s power to form new states and alter boundaries of existing states : The Parliament of India may form new states; it may increase or diminish the area of any state and it may alter the boundaries or name of any state (Article 3). The very existence of the state thus depends upon the the Union Government. The power conferred on Parliament to make territorial adjustment is better explained on the historical basis. The Government of India Act, 1935 for the first time established a federal polity in India. It deliberately created the constituent units of the federation although they had no organic roots in the past. The framers of the constitution were aware of the peculiar conditions and the reasons under which the states were formed and their boundaries were defined. So they deliberately accepted the provisions in Article-3 with a view to meet the possibility of the redistribution of the state territory after the integration of Indian Princely States. The provisions in Article-3 take into account the fact that the Constitution contemplated readjustment of the territories of constituent states which might arise in future.

4 4. Emergency provisions : The constitution envisages three types of emergencies (1) emergency caused by war or external aggression or armed rebellion (Article-352); (2) emergency caused by failure of constitutional machinery in states (Article-356); and (3) financial emergency (Article-360). When the proclamation of emergency is made under Article-352, the normal distribution of powers between the Union and the States undergoes a vital change. Parliament is empowered to make laws with respect to any matter enumerated in the State List. The Union is empowered to give directions to any state as to manner in which the State s executive power is to be exercised. Further, the President may by order direct that all or any of the provisions of Articles-278 to 279 relating to distribution of revenue between the Union and the State shall take effect with such exceptions or modifications, as he thinks fit. Under Article-356, if the President is satisfied that the Government of a state cannot be carried on in accordance with the provisions of the constitution, he can dismiss the Council of Ministers in the state and dissolve the legislature of the state and assume all the functions of the state. Thus, the normal distribution of powers between the Union and the States, which is the basic element of a federal constitution, is completely suspended. It is alleged that these provisions enable the Union Parliament to convert the Union into a Unitary State which vitally affects the federal character of the Indian Constitution. Late Prof. V.N. Shukla is of the view that emergency provisions which come into operation only on the happening of the specific contingencies, do not modify or destroy the federal system. It is rather a merit of the constitution that it visualises the contingencies when the strict application of the federal principle might destroy the basic assumption on which our constitution is built. The constitution by adapting itself to changed circumstances strengthens the Union Government in its endeavour to overcome the crisis. In an emergency the behaviour of each federal constitution is very much different from that in the normal times. Though the Constitution of the U.S.A., Australia and Canada do not expressly provide for enlargement of federal power during the periods of emergency yet during the two World Wars, the defence power of the Federal Government was given so extended an interpretation by the courts that these countries behaved more likely unitary than a federal state. For the above reasons we maintain that the Indian Constitution is federal in nature. 12 Prof. Wheare has coined a phrase quasi-federal as applicable to India but he has nowhere defined what is quasi-federal. The term quasi-federal is extremely vague as it does not denote how powerful the Union is, or how much deviation there is from the pure federal model, or what kind of special position a particular quasifederation occupies between a Unitary State and a Federal State. The fundamental principle of federation is that the powers are distributed between the centre and the states and that is done by the constitution. The states do not depend upon the centre, because in normal times the centre cannot intrude. It may be that the centre has been assigned a larger role than the states. It does not by itself detract from the federal nature of the constitution because it is not the essence of federalism to say that only so much, and no more power, is to be given to the Centre. 13 Prof. Wheare believes that the American Constitution is truly federal. He says that the examples of federal constitutions are of United States, Switzerland and Australia. It may, however, be understood that the nature of federalism is more of historical growth based on a nation s necessity. To accept the same pattern of federalism in all countries is impossible. In fact, federalism varies from place to place and from time to time depending on so many factors, e.g., historical, social, geographical, economic, political etc. Indian federalism is a unique innovation. Indian Constitution is sufficiently federal. American federalism is of higher degree on paper but in actual practice its leaning is towards centralisation in national interest. The term quasi is a misnomer. India is federal and America is more federal in the outline of the constitution. In practice there is not much of the difference between the two. 14

5 The Indian Constitution makers designed the Indian federal structure on practical considerations. Under the impact of world wars, international crisis, scientific and technological progress and developments and the emergence of the ideal of social welfare state, the whole concept of federalism has undergone a change throughout the world. There are centralising tendencies in every federation whether it is U.S.A. or Australia. Strong and powerful national governments have emerged in every federation. The framers of the Indian constitution took note of these tendencies and kept in view the practical needs of the country. Therefore, the Indian constitution is a new and bold experiment in the area of federalism. In short, it may be concluded that the constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a union of a novel type. It enshrines the principle that in spite of federalism, the national interests are paramount. Thus, the Indian Constitution is mainly federal with unique safeguards for enforcing national unity and growth. 15 SALIENT FEATURES OF THE CONSTITUTION OF INDIA 1. A modern, latest, written and lengthiest constitution : The fact that the Indian Constitution was drafted in the mid of 20 th century, gave an advantage to its makers to take care of the various constitutional processes operating in different countries of the world and thus they could depend upon a rich fund of human experience, wisdom, heritage and traditions in the area of governmental process in order to design a system suited to the political, social and economic conditions in India. The Indian Constitution has turned out to be a very interesting and unique document. One could discern the impact of several constitutions, International documents, conventions, U.N. Charter and U.N. Charter on Human Rights. As for instance, the Indian federalism is influenced by the American, Canadian and Austrian federalism, fundamental rights in India owe a great deal to the American Bill of Rights. The republican model resembles French and Irish models. The process of constitutional amendment adopted in India is a modified version of the American Constitution and blending of the then South African Constitution. The influence of the English Constitutional Law, theories and practices on the Indian Constitution is quite pervasive as for example the republican parliamentary form of government in India closely follows the unique blending of British and American and French models. The system of prerogative writs which plays a crucial role in protecting people s fundamental and legal rights and ensuring judicial control over administrative action is England s contribution to India. The doctrine of Rule of Law draws its origin from British model. Experiences of Australia have been especially useful for ordering the Centre-State relationship, specially the feature of concurrent list and inspiration for promoting the concept of freedom of trade and commerce in the country has been taken from Canadian Constitution. Inspiration has come from the Irish Constitution in the shaping of the Directive Principles of State Policy and manner of election of Indian President and Members of Council of States. The Government of India Act, 1935, which preceded the Indian Constitution, has furnished the administrative details and it is the skeleton of Indian Constitution. Although Indian Constitution incorporates the principles and institutions developed in other democratic and federal countries, yet new paths, new approaches and patterns have been adopted in several directions. It makes bold departures in many respects from the established Constitutional norms and introduces many innovations e.g. in the area of Union-State relationship, with a view to achieve the twin objectives of promoting the unity of India and reducing rigidity inherent in a federal system. The Indian Constitution makes several provisions which are original in conception as nothing parallel to these is to be found in any other federal constitution.

6 India s constitution is a lengthy, elaborate and detailed document. It consists of 395 Articles, 22 parts and 12 schedules. It is the longest of the organic laws in the world. Several reasons contributed to its prolixity. First, the Constitution not only deals with the structure and function of the Union Government but also of the states. Secondly, in a federal constitution, centre-state relationship is a matter of crucial importance and Indian Constitution deals with even the minutest details of this aspect. Thirdly, the constitution has reduced to writing many unwritten conventions of the British System for example the principles of collective responsibility of the ministers, parliamentary procedure etc. Fourthly, there exist various communities and groups in India. To remove mutual distrust among them, it was felt necessary to include in the constitution detailed provisions on safeguards to minorities, scheduled tribes, scheduled casts and backward classes. Fifthly, to ensure that India becomes a Welfare State, the Constitution includes Directive Principles of State policy. Sixthly, The Constitution incorporates the ideals of our freedom struggle, Gandhian philosophy, progressive vision of J.L. Nehru, Internationalism of Tagore and various other thinkers. The framers of Indian Constitution wanted to ensure that no difficulties are faced in the governance of the country and nascent Indian democracy gets firmly established. The finest and most successful features of the various Constitutions of the world were studied, examined and suitably adopted in the Indian Constitution, keeping in view the great diversity of Indian culture. The Indian Constitution lays down the structure and functioning not only of the Central Government but also of the States. Now it incorporates even the Panchayat Raj System at district, block and village level. Lastly, the Constitution contains not only the fundamental principles of governance but also many administrative details such as the provisions regarding citizenship, official language, government services, electoral machinery etc. The Constitution makers also made provisions for emergency and amendment of the constitution itself. Indian Constitution also leaves a number of matters to ordinary legislation. It also provides scope, though not so much as in England for the growth and development of conventions. Thus, the relationship between the President or the Governor of State and his council of ministers, the concept of ministerial responsibility for acts of the officials, the relationship between the Prime Minister and the Chief Minister of State and his respective council of ministers, the appointment of the Governor of a State, dissolution of House of the People or of a State Legislative Assembly, the relations between the President and the Governor are some of the matters which are left to be evolved by the conventions. 2. Fundamental law : The Constitution of India being a written Constitution is the fundamental law of the land. It is under this fundamental law that all laws are made and executed, all governmental authorities act and the validity of their functioning is adjudged. No legislature can make a law and no governmental agency can act contrary to the Constitution. The Constitution thus controls the whole governmental processes in the country. The judiciary is obligated to see that the provisions of the Constitution are not violated by any governmental organ. This function of the judiciary entitles it to be called as the guardian of the constitution and it can declare an Act of legislature or an

7 administrative action contrary to the constitution as invalid. Indian Constitution contains within itself elements of growth, dynamism, expansion and flexibility. It does not seek to impose on the country any particular economic philosophy or social order. It establishes a democratic process of government for over 110 crores of people and for this reason India is characterized as the biggest democracy in the world. 3. A federation with strong centralising tendency as well as emergency provisions : Another remarkable feature of the Indian Constitution is that being a federal Constitution it acquires a unitary character during the time of emergency. During the proclamation of emergency the normal distribution of powers between the Centre and the States undergoes a vital change. The Union Parliament is empowered to legislate on any subject mentioned in the State List during emergency, or in national interest, or if States wish to get the law made by Parliament and to be adopted by them, or for the enforcement of any International treaty or agreement entered into by the Union Government. The Central Government is empowered to give directions to States as to the manner in which it should exercise their executive powers. The financial arrangements between the Centre and State can also be altered by the Union Government. Thus, during the proclamation of emergency all powers are centralised in the Union Government and Constitution acquires a unitary character. This combination of federal and unitary system is a unique feature of the Indian Constitution. This feature of the Constitution can be better understood in the historical background upon which the federalism has been introduced in India and also in the light of the experience in other federal countries. India s Constitution is of the federal type. It establishes a dual polity, a two tier governmental system, with the central government at one level and the state government at the other. The Constitution demarcates the sphere of action of each level of government by devising an elaborate scheme of distribution of legislative, administrative and financial powers between the Centre and the State. India is a member of the family of federations of which the better known members are the U.S.A., Canada and Australia. Indian Constitution provides for a federal framework and within it a good deal of centralization, that is why it is known as a mechanism to promote the inter-governmental cooperation and furnishes a notable example of Cooperative Federalism. India has achieved and seeks to maintain uniformity in basic civil and criminal laws. Indian Constitution is not based on any theoretical or a prior consideration but by pragmatic considerations in designing federalism. 4. Unique blend of rigidity and flexibility : It has been the nature of the amending process in federal constitutions which has led political scientists to usually describe a federal constitution as rigid. A rigid constitution is one which requires a special method of amendment of any of its provisions while in flexible Constitution any of its provisions can be amended by ordinary legislative process. The Indian Constitution, though written, is sufficiently flexible. It is only a few provisions of the Constitution which require the consent of half of the State Legislatures. The rest of the provisions can be amended by a special majority in Parliament. 5. Republican parliamentary democracy : The Constitution makers beautifully blended the Republican model of Governance and Parliamentary model of Governance. The office of Vice-President was also created by getting inspiration from the Constitution of America. This blending is one of the greatest innovations done by the Constituent Assembly in the field of Constitutional Jurisprudence. We have the Constitutional office of the President and the Vice-President with a definite Constitutional role prescribed by Constitution itself.

8 6. Preamble : the soul of the constitution : The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular, Democratic Republic. The term Sovereign denotes that India is subject to no external authority. The term Democratic signifies that India has a parliamentary form of government, which means a government responsible to an elected legislature. The term Republic denotes that the Head of the State is not a hereditary Monarch, but an elected functionary. The preamble also throws light on the source of the Constitution. The words in the preamble, We the people of India in our Constituent Assembly do hereby adopt, enact and give to ourselves this Constitution, propound the theory that the sovereignty lies in the people, and sanction behind the Constitution is the will of the people, that the Constitution has not been imposed on them by any external authority. The people of India thus constitute the Sovereign political body which holds the power and who conduct the government of the country through their elected representatives. The two words socialist and secular were not there originally in the preamble but were added to the preamble by the 42 nd Constitutional Amendment in Thus, the concept of socialism and secularism have been made explicit and India s commitment to these ideals has been further underlined and strengthened. The word Socialist in the preamble does not envisage doctrinaire socialism which insists on State ownership as a matter of policy. It does not mean total exclusion of private enterprise and complete State ownership. In India, along with the public sector, the private enterprise is also playing an important role in the mixed economy. Now the liberalization of Indian economy is also a welcome step. Indian Constitution is in accordance with the historic Objectives Resolution of Pandit Nehru which was adopted by the Constituent Assembly on January 22 nd This Objectives Resolution subsequently became the Preamble of Indian Constitution. It is an outstanding feature that Indian Sovereignty is not inconsistent with the membership of the Commonwealth. Indian Constitution and the laws in India are in conformity with the Union Nations concept of the promotion of international peace and security. Indian democracy is a representative democracy and India has a true government of the people, by the people and for the people. Indian Constitution envisages a democratic society in the concept of a Welfare State. We have to ensure that political democracy evolves along with economic justice. India seeks to achieve socialism through a socialistic pattern of society. The concepts of justice, liberty, equality and fraternity have been nicely interwoven with the unity and integrity of the nation. Only nationalisation is not our type of socialism. Indian parliament has incorporated fundamental duties in the constitution, because rights and duties run parallel. Indian Constitution is a living law. It has proved to be a real Grund Norm in the real sense. It is a pulsating document, perhaps the finest conceived in the constitutional history of the world. The concept of social justice is all pervasive in it. 7. A welfare state : The preamble to the constitution enunciates the great objectives and the socio-economic goals for the achievement of which the Indian constitution has been established. These are, to secure to all citizens of India social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity and to promote among them fraternity so as to secure the dignity of the individual and the unity and integrity of the nation. The Indian constitution was conceived and drafted in the mid 20 th century when the concept of social welfare state was the rule of the day. It is embedded with the modern outlook regarding the objectives and the functions of the state. It explicitly declares that India will be organised as a social welfare

9 state i.e. a state which renders social services to the people and promotes their general welfare. This concept has been further strengthened by the Directive Principles of the State Policy, which set out the economic, social and political goals of the Indian constitutional system. 8. A secular state : India is a country of several religions. There exist multifarious religious groups in the country but, inspite of this, the constitution stands for a secular state of India. There is no state recognised church or religion. Several Fundamental Rights guarantee freedom of worship and religion as well as outlaw discrimination on the ground of religion. A Secular State has no religion of its own as declared religion of it. It treats all religions equally. The Preamble declares the resolve of the people of India to secure to all its citizens liberty of...belief, faith and worship. Articles 25 to 28 of the Constitution give concrete shape to this concept of secularism. It guarantees to every person the freedom of conscience and the right to profess, practise and propagate religion. In a secular State, the State only regulates the relationship between man and man. It is not concerned with the relationship of man with God. One may worship God according to the dictates of his own conscience. However it is to be noted that the freedom of religion is not an absolute freedom, but subject to the regulatory power of the State. In the name of religion nothing can be done which is against public order, morality and social health. Secularism is also subject to democratic socialism. Religious freedom cannot therefore be used to practise economic exploitation. The right to acquire, own and administer property by religious institutions is subject to the regulatory power of the State. 9. Single citizenship : Though the Constitution of India is federal and provides for dual polity i.e., Union and States, yet it provides for a single citizenship for the whole of India. The American Constitution provides for dual citizenship i.e., the citizenship of the United States of America and citizenship of any State of USA. On the other hand, there is only one citizenship in India i.e., the citizenship of India. There is no State citizenship. Every Indian is the citizen of India and enjoys the same rights of citizenship, no matter in which State he resides. The feature of single citizenship stands inspired from the British system. 10. Fundamental rights : The Indian Constitution guarantees to the people certain basic human rights and freedoms, such as equal protection of laws, freedom of speech and expression, freedom of worship and religion, freedom of assembly and association, freedom to move freely and to reside and settle anywhere in India, freedom to practise any profession or occupation, trade or business, freedom of person, freedom against double jeopardy and against ex-postfacto laws. Untouchability, the age old scourge afflicting the Hindu Society has been formally abolished. A person can claim Fundamental Rights against the state subject to the state imposing some restrictions in the interest of social control. These restrictions on Fundamental Rights are expressly mentioned in the Constitution itself and therefore these rights can be abridged only to the extent laid down. These rights in substance constitute inhibitions on the legislative and executive organs of the State. No law or executive action infringing a Fundamental Right can be regarded valid. The Judiciary ensures an effective and speedy enforcement of these rights. The Fundamental Rights have been incorporated in the Constitution because of several reasons such as consciousness of the massive minority problem in India, memories of the protracted struggle against the despotic British rule, acknowledgement of the Gandhian Ideals, climate of the international opinion and the American experience.

10 These Fundamental Rights have been conceived in a liberal spirit and seek to draw a reasonable balance between the individual freedom and social interest. The Fundamental Rights also play an important role to promote the Rule of Law in India. The decisions in Keshwanand Bharti and Minerva Mills cases are leading lights propounding the doctrine of basic features, a signal safeguard. The formal declaration of Fundamental Rights in Part III of the Constitution is a distinguishing feature of it. These rights are prohibitions against the State. The State cannot make a law which takes away or abridges any of the rights of the citizens guaranteed in the Part III of the Constitution. If it passes such a law it may be declared unconstitutional by the courts. But mere declaration of certain fundamental rights will be of no use if there is no machinery for their enforcement. Therefore, the Constitution has conferred on the Supreme Court and High Courts the power to grant most effective remedies in the nature of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari whenever these rights are violated. However, it must be clearly understood that fundamental rights are not absolute rights. They are subject to certain restrictions. Thus, our Constitution tries to strike a balance between the individual liberty and the social control. 11. Directive principles of state policy : The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims and objectives to be accomplished by the State in the governance of the country. Unlike the Fundamental Rights, these rights are not justiciable. If the State is unable to implement any of the provisions of Part IV, the courts can not order the State for their implementation. But the courts can definitely issue a direction in this regard. Though they are not justiciable in the court of law yet the governments in power have to answer for their non implementation to the electorate at the time of elections. The idea of a Welfare State envisaged in our Constitution can only be achieved if the States do endeavour to implement them with a high sense of moral and constitutional duty. The inspiration of directive principles was taken from the Irish constitution. The Constitution of Ireland had taken this inspiration from the Constitution of Spain. In reality Part IV is the will of the freedom fighters and they wanted to ensure that the promises made by them to the people of India during freedom struggle are fulfilled in future. 12. Fundamental duties : The Constitution (42 nd Amendment) Act, 1976 has introduced a Code of Fundamental Duties for citizens. The fundamental duties are indeed to serve as a constant reminder to every citizen that while the Constitution has specifically conferred on them certain fundamental rights, it also requires the citizens to observe certain basic norms of democratic conduct and democratic behaviour. The fundamental duties have been enshrined in Article 51A placed in Part IVA of Constitution. The fundamental duties in Indian Constitution are social and moral duties. The inspiration of incorporating them in the Constitution was taken from the then Constitution of the then USSR. The recommendation to this effect was given by Sardar Swaran Singh Committee. 13. Responsible government : To give reality and the content to the democratic ideals propounded in the Preamble, the Constitution establishes a republican parliamentary form of government, both at the centre and states. This system differs fundamentally from the presidential system in America. Whereas the American system is based on the doctrine of separation of powers between the executive and the legislative organ, the Indian system is based on the principle of co-ordination and co-operation of the two organs. The executive power although formally vested in the President is in effect

11 exercised by the Council of Ministers headed by the Prime Minister and responsible to the House of the People. Details of the relationship existing between the President and the Governor and the respective Council of Ministers are not fully set out in the Constitution. This is an area where conventions play a significant role. 14. An Independent judiciary : Mere enumeration of a number of fundamental rights in a Constitution without any provision for their proper safeguards will not serve any useful purpose. Indeed, the very existence of a right depends upon the remedy for its enforcement. Unless there is remedy there is no right, is a famous maxim. For this purpose an independent and impartial judiciary with a power of judicial review has been established under the Constitution of India. It is the custodian of the rights of the citizens. With a dignified and crucial position accorded to the Judiciary, a well ordered and well regulated judicial machinery has been introduced in the country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very broad and Article 136 provides it with an all pervading jurisdiction. It has inherent powers, power to judicial review and constitutional interpretation. The most significant aspect of the powers is the power to issue writs. In contrast to American Constitution, Indian Constitution provides a unified and not a dual system of courts. The judiciary has power to protect Fundamental Rights of the people from any unreasonable encroachment, to supervise the administrative process and setting inter-governmental disputes. The independence of judiciary has been well safeguarded and well founded. It is going a long way is establishing the governance of the country according to the law. 15. Provisions of universal adult suffrage, elections and an independent election commission: India has adopted adult suffrage as a basis of election to the House of the People and the State Legislative Assemblies. Every citizen on achieving the Age of Vote has a right to vote without any discrimination. It is a very bold step to adopt adult suffrage in a country of teaming millions of illiterate people and it really makes democracy broad based and ultimate sanction of the people. To ensure free and fair elections and to protect the elections from being manipulated by the politicians, the constitution sets up an autonomous and multi-member Election Commission to supervise and conduct elections to Parliament and State Legislatures. The old system of communal electorates has been abolished and the uniform adult suffrage system has been adopted. Under the Indian Constitution every man and woman above 18 years of age has been given the right to elect representatives for the legislature. The adoption of the Universal Adult Suffrage (Article 326) without any qualification either of sex, property, taxation, or the like is a bold step in India, having regard to the vast extent, diversity, illiteracy and huge population of the country. This suffrage is larger than all the democratic countries which have given right to vote to their people. In spite of many difficulties, this bold step has been successful. This is evident with the increased number of voters on the electoral rolls in the general elections. 16. Provisions for minorities, scheduled castes, scheduled tribes, backward classes, etc. : Indian Society lacks homogeneity because there exist differences of religion, language, culture etc. There are sections of people who are comparatively weaker than others, economically, socially and culturally, and their lot can be ameliorated only when the state makes a special effort in that direction. Mutual suspicion and distrust exists between various religious and linguistic groups. To promote a sense of security among the minorities, to ameliorate the conditions of the depressed and backward classes to make them useful members of society, to weld the diverse elements into one national and political stream, the constitution contains a liberal scheme of safeguards to minorities, backward classes and scheduled castes. The Constitution also sets up

12 PREAMBLE institutional machinery to oversee that these safeguards are properly effectuated by the various governments in the country. The pronouncement of their lordships of the Supreme Court of India in Indira Sahni v Union of India, better known as Mandal Commission case is a land mark in this direction. The Preamble to an Act sets out the main objectives which the legislature intends to achieve 16. It is very helpful to understand the policy and legislative intent. It expresses what we had thought or dreamt for so long 17. The Constitution-makers gave to the Preamble the place of pride. It enshrines the ideals and aspirations for which the country had struggled during the British regime 18. In Berubari case, 19 the Supreme Court held that the Preamble to the Constitution is a key to open the mind of the makers, and shows the general purpose for which they made the several provisions in the Constitution. Preamble and interpretation of the constitution : The Preamble is the key to open the mind of the makers. But it does not mean that the preamble can override the express provisions of the Act. In Berubari s case the Supreme Court held that the Preamble was not a part of the Constitution. But in Kesavananda Bharti v. State of Kerala, 20 the Supreme Court rejected the above view and held that the preamble is the part of the Constitution. Though in any ordinary statute not much importance is attached to the preamble, all importance has to be attached to the preamble in a constitutional statute. Sikri, C.J., observed, it seems to me that the Preamble of our constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. 21 In Randhir Singh v. Union of India 22 the Supreme Court relying on the Preamble and Articles 14, and 16 held that Article 39(a) envisages a constitutional right of equal pay for equal work for both men and women. The Preamble serves the purpose of indicating the source from which the Constitution comes, viz., the people of India. It contains the enacting clause which brings into force the Constitution. It declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established. 23 The preamble declares in unambiguous terms that it is the people of India who have adopted, enacted and given to themselves the Constitution. It declares, therefore, that the source of authority under the Constitution is the People of India and there is no subordination to any external authority. Obviously, the sovereignty in Indian Political System and Constitution lies with the people of India. The Preamble of the Constitution declares India to be a Sovereign, Socialist, Secular, Democratic Republic. 24 The word sovereign means that India is free from any outside political control. However, India is still a member of the Commonwealth of Nations. But, its membership of the Commonwealth of Nations is not inconsistent with her independent sovereign status. A Democratic State may have an elected or a hereditary head of the State. India is a republic because the head of the State is not a hereditary monarch. In a republic the political sovereignty vests in the people and the head of the State is only a person elected by the people for a fixed term. In our Constitution there is a President who is the head of the executive and who is elected, as opposed to hereditary monarch, and holds office for a fixed term of five years. The term democratic indicates that the Constitution has established a form of Government which gets it authority from the will of the people. The rulers are elected by the people and are responsible to them. The democratic set up can be of two types i.e., direct, and indirect. In a direct democracy the legal and political sovereignty vests in the people, as is the case of Switzerland. In the indirect system of democracy, it is the representatives of the people who

13 exercise the power of legal as well as political sovereignty. The electorate elects their representatives who carry on the Government. It is for this reason that this type of democracy is called representative democracy. In the Indian Constitution we have adopted indirect or representative system of democracy. The term democracy in its broadest sense embraces, in addition to political democracy, also social and economic democracy. The term democratic is used in this very sense in the Preamble. Objectives enshrined in the preamble : The following are the objectives which the Preamble secures to every citizen 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 25 [unity and integrity of the nation]. Democracy would indeed be hollow if it fails to generate this spirit of brotherhood among all sections of the people that they are children of the same soil and the same motherland. It becomes all the more essential in a country like India composed of many races, religions, languages and cultures. 26 Provisions of the Declaration of Human Rights adopted by the U.N.O. embody this noble and human principle that all the human beings are born free and are equal in dignity and rights. They are endowed with reason and conscience and should act in a spirit of brotherhood. It is this concept of brotherhood of man which is contained in the Preamble of the Constitution and is given practical shape by abolishing titles (Article 18) and untouchability (Article 17) and many other social evils. 27 Liberty, Equality and Fraternity which the Constitution seeks to secure for the people of India are to serve the primary objective of ensuring social, economic and political justice. Justice is the harmonious blending of selfish nature of man and the good of the society. The attainment of the collective good as distinguished from individual good is the main aim of rendering justice. Gandhi ji wished an India, in which the poorest shall feel that it is their country, in whose making they have an effective voice, an India in which all communities shall live in perfect harmony. 28 Can preamble be amended under Article-368 : This question was raised for the first time before the Supreme Court in the historic case of Kesavanand Bharati v. State of Kerala, 29 the Supreme Court held that the Preamble is a part of the Constitution and, therefore, overruled its earlier opinion in Berubari reference. On the question whether the preamble can be amended the majority held that since the Preamble is the part of the Constitution it can be amended but subject to this condition that the basic features in the Preamble cannot be amended. The Court said, the edifice of our Constitution is based upon the basic elements mentioned in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same Constitution. The Preamble declares that the people of India resolved to constitute their country into a Sovereign, Democratic Republic. No one can suggest that these words are ambiguous in any manner. An amending power cannot be interpreted so as to confer power on the Parliament to take away any of these fundamental and basic characteristics of policy. The amending power cannot change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic. 42 nd Amendment and the preamble : The amendment inserted three new words in the Preamble i.e., Secularism, Socialism and Integrity. These concepts were already implicit in the Constitution. The amendment merely spells out clearly these concepts in the Preamble.