a. Definition of Constitution and its Classification Feature
Description
Definition The fundamental law of the land. It is the source of all powers and limitations placed upon the three organs of the State (executive, legislature, judiciary). No State action is valid unless permitted by it. It is designed to be the vehicle of a nation's life, encompassing the hopes and aspirations of the people.
Nature/Classification The Indian Constitution is a written and controlled Constitution. It is considered an organic or living document that must be amended to meet the changing times and societal needs. Framers were aware of the difference between "flexible" and "rigid" constitutions.
b. Sources and Framing of the Indian Constitution The framers, working through the Constituent Assembly, consciously developed a constitutional pattern "suitable to the genius and requirements of the Indian people".
Source/Feature
Detail
Foundational Document The Constitution borrowed a great deal from the Government of India Act, 1935.
Borrowed Concepts Key concepts were borrowed from Constitutions of other countries, including the United Kingdom, Canada, Australia, Ireland, the United States of America, and Switzerland.
Fundamental Rights (FRs) Borrowed from the Constitution of the United States of America.
Directive Principles (DPSP) Borrowed from the Constitution of Ireland, which copied them from the Constitution of Spain.
Sovereignty Legal sovereignty vests in the people of India (as per the Preamble).
c. Salient features of Indian Constitution
- Constitutional Supremacy: The Constitution is supreme; all organs (executive, legislature, judiciary) owe their existence to it and must function within its limits.
- Preamble and Objectives: Resolves to constitute India as a Sovereign Secular Democratic Republic and secures Justice, Liberty, and Equality to all citizens, promoting Fraternity and the unity/integrity of the Nation.
- Fundamental Rights (Part III, Arts. 12-35): Establish Political Democracy. They are basic rights guaranteed to citizens and operate as restrictions imposed on the State. Violation is punishable and the rights are justiciable (enforceable by courts). They can be suspended during a national emergency, but Articles 20 and 21 cannot be suspended.
- Directive Principles of State Policy (Part IV, Arts. 36-51): Establish Economic and Social Democracy. They are guidelines for the Government while framing policies, fostering the welfare of the entire community. They are not justiciable; violation is not punishable, and courts cannot declare a law invalid merely for violating DPSPs.
- Separation of Powers/Checks and Balances: The constitutional scheme is generally based on the principle of checks and balances, rather than strict separation of powers.
- Basic Structure Doctrine: Affirmed in Kesavananda Bharati v. State of Kerala (1973). Parliament's power to amend the Constitution (Art. 368) is limited, and it cannot destroy the basic foundation and structure. Essential features of the Basic Structure include: Supremacy of the Constitution, Republican and Democratic form, Secular character, Separation of powers, and Federal character.
d. Is Indian Constitution Federal in Nature? The Indian Constitution is generally described as 'quasi-federal'. It is a mixture of federal and unitary elements, leaning more towards the latter.
Unitary (Centralizing) Features
Distribution of Powers Powers are distributed between the Union and States (Lists I, II, III).
State Sovereignty States have an independent constitutional existence and are considered sovereign within their allotted sphere.
Separate Taxing Powers Taxation fields are mutually exclusive, preventing conflict between Union and State taxing powers (List III contains no taxes).
Territorial Integrity The Constitution does not guarantee the territorial integrity of the States. Parliament can unilaterally form new States, alter areas, boundaries, or names (Art. 3) without State concurrence.
Residuary Powers Residuary legislative power (Art. 248) is vested in the Union (Parliament).
Single Judiciary The judicial structure is unitary for the entire country.
Emergency Powers The Union gains dominant power during emergencies (Arts. 352, 356, 360), allowing it to override State powers.
Financial Dependence States depend significantly on the Union for financial assistance and grants (Arts. 275, 282).
Constitutional Organs a. Parliament
- Composition: Parliament's composition is set out in the Constitution.
- Parliamentary Sovereignty: The doctrine of British parliamentary sovereignty does not apply, as the Constitution is supreme. Indian Legislatures derive their limited powers from the Constitution.
- Parliamentary Privileges (Arts. 105 & 194): These are rights enjoyed by the Houses and members, necessary for discharging their functions. Key privileges include freedom of speech in Parliament (Art. 105(1 . Privileges are equated to those existing immediately before Section 15 of the 44th Amendment Act, 1978.
- Judicial Review and Privileges: The courts possess the jurisdiction to examine the content and scope of powers and privileges claimed by the legislature.
- Article 122(1) prohibits calling into question proceedings in Parliament merely on the ground of "irregularity of procedure".
- However, judicial scrutiny is permissible where there is substantive illegality, violation of constitutional mandate, gross illegality, irrationality, or mala fides.
b. Executive Power: Power of President and Governor
- Scope of Executive Power (Arts. 73, 162): The executive power of the Union and States is co-extensive with their respective legislative powers. Executive function includes determining policy and carrying it into execution.
- Constitutional Head: The President (Union) and Governor (State) are the constitutional or formal heads. They must exercise their powers and functions on the aid and advice of the Council of Ministers.
- Governor's Discretion (Art. 163): The Governor must generally act on ministerial advice, except insofar as the Constitution requires him to exercise functions in his discretion.
- This discretion applies in specific constitutional provisions (e.g., reporting on failure of constitutional machinery under Article 356).
- In a situation involving the prosecution of a Chief Minister or Minister (e.g., under the Prevention of Corruption Act), the Governor must, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers, due to the risk of bias. If the Council of Ministers' decision to refuse sanction is irrational or based on non-consideration of relevant factors, the Governor is right to act in discretion.
- Independence of Judiciary: This is an integral and essential feature of the Constitution, acknowledged as part of the basic structure. The framers ensured judicial independence by rejecting executive/legislative control over judicial appointments, fearing impact by "political pressure" and "political considerations".
- Judicial Review (Arts. 32, 226/227): This power, vested in the Supreme Court and High Courts, is an inviolable part of the basic structure of the Constitution. It cannot be ousted entirely. The judiciary determines if any law has exceeded the legislative limits prescribed by the Constitution.
- Jurisdiction of Supreme Court and High Courts:
- High Courts exercise powers under Articles 226/227.
- The Supreme Court is the apex court, and the law declared by it is the law of the land (Art. 141). The power of judicial review helps maintain the balance of power within the constitutional scheme.
Distribution of Powers between Centre and States The distribution of legislative, administrative, and financial powers is central to India's quasi-federal structure.
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a. Legislative Relations between Union and the States (Arts. 245-255)
- Basis: Powers are allocated through three lists in the Seventh Schedule (List I: Union, List II: State, List III: Concurrent).
- Supremacy: Article 246 establishes the principle of federal supremacy. If there is an irreconcilable conflict between Union (List I) and State (List II) legislative powers, the Union power prevails. In the Concurrent List (List III), if a State law is "repugnant" to a Union law, the Union law prevails.
- Residuary Power: Parliament has exclusive power over any matter not enumerated in List II or List III (Art. 248, Entry 97 List I).
- Harmonious Construction: When lists appear to conflict, courts must first attempt to reconcile them by reading them broadly, giving full scope to the language of both entries where possible. Recourse to the non-obstante clause (federal supremacy) is a measure of last resort.
b. Administrative Relations between Union and the States
- State Obligations (Arts. 256, 257): . click apply for full job details