Charactersitics of Indian Constitution

8/7/2019 Charactersitics of Indian Constitution

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Indian Constitution: Fundamental

Characteristics

S M Masum billah

[email protected]



Introduction

� Pandit Jawaharlal Nehru in the first ConstituentAssembly in free India said:² Long years ago we made a tryst with destiny and now the

time comes when we shall redeem our pledge, not wholly or

full measure, but very substantially. A the stroke of themidnight hour, when the world sleeps, India will awaken tolife and freedom. A moment comes, which comes but rarely in history, we step out from the old to the new, when an ageends, and when the soul of a nation long suppressed, findsutterance. It is fitting that at this solemn moment we take thepledge of dedication to the service of India and her peopleand to still the larger cause of humanity.



Introduction

� A constitution is an ever growing thing and is

perpetually continuous as it embodies the spirit

of a nation. It enriched at present by the pastinfluences and makes the future richer than the

present.

� Indian Constitution is an ample example of this

connotation.



Introduction

� Adopted in 1950, came into effect on January

26, 1950.

� Biggest Constitution of the world (395 Articles)� Founding Father: Dr. B R Ambedkar



Characteristics of Indian Constitution

� Shellat & Grover JJ. (in Keshvananda Bharati v. State of Kerala1973):² Our constitution is unique , apart from being the longest in the world. It

is meant for the second largest population with diverse people speaking

different languages and professing various religions. It is chiselled andshaped by great political leaders and legal luminaries, most of whom hadtaken an active part in the struggle for freedom from the British yoke andwho knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitationof the millions of Indians. The constitution is an organic document which

must grow and it must take stock of the vast socio-economic problems,particularly, of improving the lot of the common man consistent with hisdignity and the unity of the nation.



� Hegde and Mukherjea JJ. Stated:

² Our constitution is not a mere political document. Itis essentially a political document. It is based onsocial philosophy like every religion has two mainfeatures, namely, basic and circumstantial. Theformer remains constant and the latter is subject tochange.



PREAMBLE

� WE, THE PEOPLE OF INDIA, having solemnly resolved toconstitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

� JUSTICE, social, economic and political;

� LIBERTY of thought, expression, belief, faith and worship;� EQUALITY of status and of opportunity;

� and to promote among them all� FRATERNITY assuring the dignity of the individual and the

unity and integrity of the Nation;

� IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVETO OURSELVES THIS CONSTITUTION.



� Deep deliberation marked by precision� An epitome of broad features of the constitution.� Part of the constitution and a guide to interpretation of the

constitution.

� Very soul of the constitution³eternal and untouchable.� Declaration of faith and belief from which we should not depart

in our national life.� Basic structure of the constitution.� Justice Ramaswamy: ´ The preamble of the Constitution, is an

integral part of the Constitution. Democratic form of government, federal structure, unity and integrity of the nation,secularism, social justice and judicial review are basic features of the constitution.µ



A Welfare State

� Justice, Liberty, Equality, Fraternity

� Attainment of Happiness and Good for All

� Equality and Non-discrimination� No Exploitation

� Spirit of brotherhood

� No untouchability � Above all social service of the state



Socialist Republic

� 42nd Amendment

� Bridge the gap between rich and the poor.

� ¶Socialism· being the synthesis between publicand private ownership.



Single Citizenship

� Single citizenship³No dual citizenship---- One

for province and another for whole India.

� Some domicile rule is there in different stateswhich differs with each other.



Secularism

� Religious freedom and tolerance and respect for ideasof rationalism, materialism, humanism.

� Encyclopedia of Social Sciences: An attempt to

establish an autonomous sphere of knowledge purgedof supernatural presuppositions.

� Encyclopedia Britannica: Utilitarian ethic designed for

physical, spiritual and moral improvement of mankindwhich neither affirms nor denies the theistic premise of religion.



Secularism

� Donald Eugene Smith: The secular state is a state which givesindividual and corporate freedom of religion, is notconstitutionally connected to a particular religion, nor does itseek either to promote or interfere with religion.

� M H Beg in Ziauddin Burahmmuddin Bukhari v. Brijjmohan Ramdass Mehra and Bros. (1975 SCR 281): The secular state, rising above alldifferences of religion, attempts to secure the good of all itscitizens irrespective of their religious beliefs and practices. It isneutral or impartial in extending its benefits to citizens of all

castes and creeds.



� Anything that is pernicious and exploitative cannot beallowed to remain outside the control of law simply because it is paraded under the garb of religion.

� K eshavanandi Bharati Case and Babri Mosque Case: Secularism as the basic structure of the constitution.

� In Ayodha Case (1995 SC 605): The concept of secularism is one facet of right to equality woven as thecentral golden thread in the fabric depicting the pattern

of the scheme in our constitution.



� Dr. Radhakrishnan, The ex-President of India inRecovery of Faith at 184:

² ´When India is said to be a secular state it does not mean that

we reject the reality of an unseen spirit or the relevance of religion in life or that we exalt irreligion. It does not meanthat secularism itself becomes a positive religion or the state

assumes divine prerogatives«we hold that not one religionshould be given preferential status«This view of religiousimpartiality or comprehension or forbearance, has aprophetic role to play within the national and internationallifeµ.



Secularism in BD Const.

� Basic 4 principles: Secularism is one.

� Article 12 of the original Constitution that says: Theprinciple of secularism shall be realized by the

elimination of - (a) communalism in all its forms; (b)the granting by the State of political status in favour of any religion; (c) the abuse of religion for politicalpurposes; (d) any discrimination against, or prosecutionof persons practicing a particular religion.

� 5th Amendment Case has restored this principle.



� If Secularism Collapses as a casualty of

communalism, humamism has no hope of

survival as a basic creed of a nation---Per

Justice V R Krishna Iyer.

� In essence: Equal freedom to all religious beliefs.



Election

� The entire scheme of the constitution is such

that it ensures the sovereignty and integrity of

the country as a Republic and the democraticway of life by parliamentary institutions based

on free and fair elections.



Adult Suffrage

� Adult Franchise ²universal.

� Basic of election.

� No discrimination.



Federal Form of Government

� From the history adopted the strong central

government.

� Some area are conferred on Province.� Parliament can enact laws to control.



Parliamentary form of Government

� Bicameral Legislature.

� The ´Rajjya Shavaµ and The ´Loko Shavaµ.

� President is the part of the parliament butdoesn·t sit.



Flexibility

� Flexible in nature.

� Three ways:

² Union parliament by a simple majority.² Ratified by half of the state legislatures and by two

thirds majority of either house of the parliament.

² Two-thirds majority³present and voting.



� Mathew J. : The constitution is a framework of greatgovernmental powers to be exercise for great publicends in the future, is not a pale intellectual concept but

a dynamic idea which must dominate at any consideration of the width of the amending power«Aconstitution is not an end in itself, rather a means of ordering the life of a nation. The generation of yesterday might not know the needs of today, and if

¶yesterday is not to paralyze today· , it seems best topermit each generation to take care of itself.



Independent Judiciary

� One hierarchical.

� Independent in terms of jurisdiction,

appointment procedure, security of tenure,privileges etc.



Judicial Review

� SC can declare any law unconstitutional if inconsistent with the constitution.



Fundamental Rights and Duties

� FR in Part III (Article 12-35).

� FD in Part IV A ( Article 51 A)



Directive Principles of State Policy

� The purpose of the directive principles is to fix

certain social and economic goals for immediate

attainment by bringing about a non-violentsocial revolution.

� Fulfill basic needs of the common man.

� Make people free from poverty, illiteracy andother social menaces.



FR and DPSP

� DPSP prescribes the goal to be attained and FR

prescribes how those goals are to be achieved.

� They are the conscience of the constitution.� Purpose is to make egalitarian society and ensure

liberty for all.



� DPSP laying down the path of a countries progresstowards the allied objectives and aims stated in thepreamble, FR is the limits of the path, like the banks of

flowing river, which would be mended by displacements, replacements or curtailments orenlargements of any part according to the needs of those who had to use the path. ( Per Beg J. in

Keshavananda Bharati v. State of Kerala 1973 4 SCC225)



� Chandrachud, CJ in Minerva Mills Case (1980 SCC 625)observed:

² The significance of the perception that Parts III and IV

together constitutes the core of commitment to socialrevolution and they together are the conscience of theconstitution ««..two wheels of a chariot , one no less

important than the other. You snap one and the other wouldlose its efficacy. They are like a twin formula for achieving the social revolution which was the ideals of the visionary founders of the constitution.



� FR conferred on individual citizens is the soul of

the constitution and the DPSP , which are

meant for achieving the welfare of the society ingeneral, it bodyµ

² Indian SC in TG Srinivas Murthy v. BEML (1982) IILJ 268

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Charactersitics of Indian Constitution