Salient Features of the Indian Constitution

The Indian Constitution is exceptional in its scope and spirit. While it draws heavily from the constitutional traditions of many countries, it synthesises these influences into a document uniquely suited to India's social, historical, and political conditions. The original Constitution adopted in 1949 has been substantially shaped by subsequent amendments — notably the 7th, 42nd, 44th, 73rd, 74th, and 97th Amendments. The 42nd Amendment Act (1976), which made sweeping changes across the document, is often called the 'Mini-Constitution'.

A critical judicial limit on amendment power was set in the Kesavananda Bharati case (1973), where the Supreme Court held that Parliament's constituent power under Article 368 cannot be used to alter the 'basic structure' of the Constitution.

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Constitutions may be written (like the American) or unwritten (like the British). India's Constitution is the longest written constitution in the world — a comprehensive, elaborate, and highly detailed document.

• Originally (1949): Preamble + 395 Articles (22 Parts) + 8 Schedules
• Currently (2016): Preamble + ~465 Articles (25 Parts) + 12 Schedules
• Amendments since 1951 have deleted ~20 Articles and one Part (VII), while adding ~90 Articles, four new Parts (IVA, IXA, IXB, XIVA), and four new Schedules (9, 10, 11, 12)

Four reasons for the Constitution's bulk:

1. Geographical diversity — the sheer size and complexity of India demanded elaborate provisions
2. Historical legacy — heavy influence of the Government of India Act, 1935, which was itself a voluminous statute
3. Single constitution for Centre and states — unlike federations such as the USA, India has one constitution for both levels (except Jammu & Kashmir, which had its own constitution under Article 370)
4. Legal expertise in the Constituent Assembly — the dominance of lawyers led to detailed, legalistic drafting

Unlike most constitutions, India's document incorporates not just governance principles but also detailed administrative provisions, and matters that other democracies leave to ordinary legislation or political convention.

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Dr B.R. Ambedkar proudly stated that the Constitution was framed after 'ransacking all the known constitutions of the world.' The most significant single source is the Government of India Act, 1935 — over 250 of its provisions were incorporated, and more than half the Constitution's provisions are identical to or closely derived from it.

Key Borrowings at a Glance

The structural part derives largely from the 1935 Act; the philosophical part (Fundamental Rights, DPSPs) from American and Irish constitutions; and the political part (Cabinet Government, executive-legislature relations) from the British Constitution.

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A rigid constitution requires a special amendment procedure (e.g., USA), while a flexible constitution can be amended like ordinary legislation (e.g., Britain). India's Constitution is neither purely rigid nor purely flexible — it is a deliberate synthesis of both.

Under Article 368, the amendment process operates at three levels:

1. Special majority of Parliament alone — two-thirds of members present and voting in each House, plus a majority of the total membership of each House
2. Special majority + ratification by at least half the states — required for provisions affecting the federal structure
3. Simple majority of Parliament — for certain specified provisions; these amendments do not fall under Article 368

This tiered system allows the Constitution to be firm on fundamental matters while remaining adaptable on administrative details.

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The Constitution establishes a federal system with the classic federal features: dual government, division of powers, written and supreme Constitution, constitutional rigidity, independent judiciary, and bicameralism.

However, it also contains strong unitary or centralising elements: a powerful Centre, single Constitution, single citizenship, integrated judiciary, Centre's power to appoint Governors, All-India Services, and comprehensive emergency provisions.

Significantly, the word 'Federation' does not appear anywhere in the Constitution. Article 1 describes India as a 'Union of States', conveying two things:

• The Indian federation is not the result of a compact between states
• No state has the right to secede

Scholarly Descriptions of India's Federalism

• K.C. Wheare — 'quasi-federal'
• Morris Jones — 'bargaining federalism'
• Granville Austin — 'co-operative federalism'
• Ivor Jennings — 'federation with a centralising tendency'
• General description — 'federal in form but unitary in spirit'

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India opted for the British Westminster model of parliamentary government rather than the American presidential system. The key distinction: the parliamentary system rests on cooperation and coordination between the legislature and executive, while the presidential system operates on separation of powers.

The parliamentary system — also called 'responsible government' or 'cabinet government' — is established at both the Centre and in the states.

Features of Parliamentary Government in India

• Presence of nominal (President/Governor) and real (PM/CM) executives
• Majority party forms the government
• Collective responsibility of the Council of Ministers to the lower House
• Ministers must be members of the legislature
• Leadership of the Prime Minister or Chief Minister
• Power to dissolve the lower House (Lok Sabha or State Assembly)

India vs. Britain: India's Parliament is not sovereign (unlike the British Parliament); India has an elected head of state (republic), while Britain has a hereditary monarch. The role of the Prime Minister has grown so dominant in practice that political scientists often call it a 'Prime Ministerial Government.'

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Britain's system is associated with parliamentary sovereignty and the USA's with judicial supremacy. India strikes a balance between the two.

• The Supreme Court can strike down parliamentary legislation through judicial review
• Parliament can amend most of the Constitution through its constituent power

One key distinction from the USA: India's Constitution uses 'procedure established by law' (Article 21) rather than 'due process of law' as in the US Constitution, making the scope of judicial review narrower in India than in the USA.

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India has a single, unified judiciary with the Supreme Court at the apex, High Courts at the state level, and District/Subordinate Courts below them. This single hierarchy enforces both central and state laws — unlike the USA, where federal and state judiciaries operate in parallel.

The Supreme Court serves as:

• A federal court (arbiter of Centre-state disputes)
• The highest court of appeal
• Guardian of Fundamental Rights and the Constitution

Mechanisms ensuring judicial independence:

• Security of tenure for judges
• Fixed and protected service conditions
• Expenses charged to the Consolidated Fund of India (not subject to parliamentary vote)
• Prohibition on legislative discussion of judicial conduct
• Ban on post-retirement practice in courts where they served
• Power to punish for contempt
• Separation of judiciary from the executive

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Part III of the Constitution guarantees six Fundamental Rights to citizens (originally seven; the Right to Property under Article 31 was removed by the 44th Amendment, 1978, and is now a legal right under Article 300-A):

1. Right to Equality (Articles 14–18)
2. Right to Freedom (Articles 19–22)
3. Right against Exploitation (Articles 23–24)
4. Right to Freedom of Religion (Articles 25–28)
5. Cultural and Educational Rights (Articles 29–30)
6. Right to Constitutional Remedies (Article 32)

Key characteristics:

• Promote political democracy and check executive and legislative tyranny
• Justiciable — courts can enforce them; the Supreme Court can issue writs (habeas corpus, mandamus, prohibition, certiorari, quo warranto)
• Not absolute — subject to reasonable restrictions
• Not sacrosanct — Parliament can curtail or repeal them by constitutional amendment
• Can be suspended during National Emergency, except rights under Articles 20 and 21

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Dr Ambedkar described DPSPs as a 'novel feature' of the Constitution. Enumerated in Part IV, they are classified into three categories:

• Socialistic — promoting economic equality and welfare
• Gandhian — rooted in Gandhian social philosophy
• Liberal-intellectual — inspired by liberal democratic thought

Purpose: To promote social and economic democracy and build a welfare state.

Critical distinction from Fundamental Rights: DPSPs are non-justiciable — courts cannot enforce them for their violation. Yet the Constitution declares them 'fundamental in the governance of the country' and imposes a moral obligation on the state to apply them. The real sanction behind them is political — public opinion.

In the Minerva Mills case (1980), the Supreme Court held that the Constitution rests on a 'balance between Fundamental Rights and Directive Principles.'

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The original Constitution had no Fundamental Duties. They were added by the 42nd Amendment Act, 1976, during the internal emergency (1975–77), based on the recommendation of the Swaran Singh Committee. The 86th Amendment Act, 2002 added one more duty, bringing the total to eleven.

Location: Part IV-A, Article 51-A

Examples of duties: To respect the Constitution, national flag, and national anthem; to protect sovereignty, unity, and integrity; to promote brotherhood; to preserve composite cultural heritage; etc.

Like DPSPs, Fundamental Duties are non-justiciable — they serve as reminders of civic obligations alongside constitutional rights.

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India is constitutionally a secular state — it has no official religion. The term 'secular' was explicitly added to the Preamble by the 42nd Amendment, 1976.

Constitutional Provisions Reflecting Secularism

• Liberty of belief, faith, and worship (Preamble)
• Equality before law regardless of religion (Article 14)
• No state discrimination on grounds of religion (Article 15)
• Equal opportunity in public employment (Article 16)
• Freedom of conscience and right to profess, practice, and propagate religion (Article 25)
• Rights of religious denominations to manage their affairs (Article 26)
• No compulsion to pay taxes for any religion's promotion (Article 27)
• No religious instruction in state-maintained institutions (Article 28)
• Right to conserve distinct language, script, or culture (Article 29)
• Minority right to establish and administer educational institutions (Article 30)
• Directive for a Uniform Civil Code (Article 44)

Indian vs. Western Secularism: The Western concept implies strict separation of church and state. India's multireligious society makes this inapplicable. India follows a positive secularism — equal respect and protection for all religions. The Constitution also abolished communal representation (reservation of legislative seats on religious lines, which existed under the 1909, 1919, and 1935 Acts).

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Every citizen aged 18 or above has the right to vote for the Lok Sabha and state legislative assemblies, without discrimination on the basis of caste, race, religion, sex, literacy, or wealth.

The voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act, 1988 (operative 1989).

Significance:

• A bold experiment given the country's scale, poverty, illiteracy, and social inequality
• Makes democracy broad-based and reinforces equality
• Empowers minorities and weaker sections
• Enhances dignity and self-respect of ordinary citizens

(For reference: Women received voting rights in USA in 1920, Britain in 1928, France in 1945, and Switzerland as late as 1971.)

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Despite a federal structure and dual polity (Centre and states), India provides for only one citizenship — Indian citizenship — for all persons.

Contrast with the USA: In the US, every person is simultaneously a citizen of the nation and of their particular state, carrying dual rights from both levels of government.

In India, all citizens — irrespective of the state they were born in or reside in — enjoy the same political and civil rights throughout the country. Exceptions exist for certain tribal areas and (formerly) Jammu & Kashmir.

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Beyond the three organs of government, the Constitution establishes independent bodies as bulwarks of democracy:

1. Election Commission — ensures free and fair elections to Parliament, state legislatures, the offices of the President and Vice-President
2. Comptroller and Auditor-General (CAG) — audits accounts of the Centre and states; acts as guardian of the public purse
3. Union Public Service Commission (UPSC) — conducts examinations for All-India Services and higher central services; advises the President on disciplinary matters
4. State Public Service Commissions — conduct state-level recruitment; advise Governors on disciplinary matters

Their independence is protected through security of tenure, fixed service conditions, and expenses charged to the Consolidated Fund of India.

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The Constitution contains elaborate emergency provisions to protect sovereignty, unity, integrity, and security of the country. Three distinct types of emergencies are recognised:

Effect: During an emergency, the Centre becomes all-powerful, states come under central control, and the federal structure effectively converts to a unitary one — without any formal constitutional amendment. This transformation is a unique feature of the Indian Constitution.

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Originally, the Constitution provided for a dual polity (Centre and states). The 73rd and 74th Constitutional Amendment Acts (1992) added a third tier of local government — a feature unique in comparative constitutional law.

• 73rd Amendment Act (1992): Added Part IX and Schedule 11 — gave constitutional recognition to Panchayats (rural local bodies). Provides for a three-tier panchayati raj system: village, intermediate, and district levels.
• 74th Amendment Act (1992): Added Part IX-A and Schedule 12 — gave constitutional recognition to Municipalities (urban local bodies). Provides for Nagar Panchayats (transitional areas), Municipal Councils (smaller urban areas), and Municipal Corporations (larger urban areas).

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The 97th Constitutional Amendment Act (2011) elevated co-operative societies to constitutional status through three changes:

1. Made the right to form co-operative societies a Fundamental Right (Article 19)
2. Added a new Directive Principle on promotion of co-operative societies (Article 43-B)
3. Added Part IX-B (Articles 243-ZH to 243-ZT) — 'The Co-operative Societies' — with provisions for democratic, professional, autonomous, and economically sound functioning of co-operatives

Parliament has jurisdiction over multi-state co-operatives; state legislatures govern the rest.

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The Constitution has faced several criticisms — some superficial, others more substantive:

1. A Borrowed Constitution

Critics call it a 'bag of borrowings' or a 'patchwork' of world constitutions with nothing original. Ambedkar's response: No constitution can be truly novel at this stage in constitutional history; what matters is adapting borrowed features to suit local needs and avoid their defects.

2. Carbon Copy of the 1935 Act

N. Srinivasan and Sir Ivor Jennings observed that it is closely derived — even textually — from the Government of India Act, 1935. P.R. Deshmukh called it 'essentially the 1935 Act with adult franchise added.' Ambedkar's response: There is no shame in borrowing; no one holds a patent on constitutional ideas. His regret was only that most provisions borrowed from the 1935 Act relate to administrative details rather than principles.

3. Un-Indian or Anti-Indian

Critics like K. Hanumanthaiya argued that the Constitution does not reflect India's political traditions and spirit, making it unsuitable for Indian conditions. Lokanath Misra called it a 'slavish imitation of the west.'

4. Un-Gandhian Constitution

The Constitution was criticised for not building upon village panchayats as Gandhiji envisioned. K. Hanumanthaiya stated it was precisely the kind of Constitution Gandhi 'did not want.'

5. Elephantine Size

Sir Ivor Jennings found it too long and complicated. H.V. Kamath, a Constituent Assembly member, humorously noted that like the Assembly's elephant emblem, the Constitution too was 'the bulkiest in the world.'

6. Lawyer's Paradise

Ivor Jennings and H.K. Maheswari criticised it for being excessively legalistic and litigation-inviting. P.R. Deshmukh lamented that it reads like a 'law manual' rather than a 'vibrating, pulsating, life-giving' socio-political document.

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• The 42nd Amendment is called the 'Mini-Constitution'; Kesavananda Bharati (1973) protects the basic structure.
• Originally 7 Fundamental Rights; reduced to 6 after the 44th Amendment (1978) deleted the Right to Property.
• Fundamental Duties added by 42nd Amendment (1976) on Swaran Singh Committee recommendations; 86th Amendment (2002) added the 11th duty.
• The term 'secular' was added to the Preamble by the 42nd Amendment (1976).
• Voting age reduced from 21 to 18 by the 61st Amendment (1988).
• 'Armed rebellion' replaced 'internal disturbance' in Article 352 by the 44th Amendment (1978).
• Minerva Mills (1980): Constitution balances Fundamental Rights and DPSPs.
• India is described as a 'Union of States' (Article 1), not a 'Federation.'
• The 97th Amendment (2011) gave constitutional status to co-operative societies.
• The 73rd and 74th Amendments (1992) created the third tier of government.
• The Seventh Schedule currently has Union List (100 subjects), State List (61 subjects), Concurrent List (52 subjects).
• The Eighth Schedule has 22 languages (originally 14).
• The Ninth Schedule (added by 1st Amendment, 1951) protects laws from judicial review — but laws added after April 24, 1973 are open to judicial review (Supreme Court ruling, 2007).
• The Tenth Schedule (52nd Amendment, 1985) is the .