Nature Of Constitution - Jharkhand PCS Exam Notes

Nature of Constitution

The Modern State is considered to be a state for the welfare of the people. It is therefore, suggested that it should have a government of a particular form with appropriate powers and functions.
The document containing laws and rules which determine and describe the form of the government, the relationship between the citizens and the government, is called a Constitution. As such a constitution is concerned with two main aspects the relation between the different levels of government and between the government and the citizens.
A constitution is the basic fundamental law of a State.
It lays down the objectives of the State which it has to achieve. It also provides for the constitutional framework that is, various structures and organs of the governments at different levels. In addition, it describes the rights and duties of the citizens.
It is, therefore, considered to be the basis for the governance of the country both in terms of goals and objectives as also their structures and functions.

A Written Constitution

The Indian Constitution is mainly a written constitution. A written constitution is framed at a given time and comes into force or is adopted on a fixed date as a document. As you have already read that our constitution was framed over a period of 2 years, 11 months and 18 days, it was adopted on 26th November, 1949 and enforced on January 26, 1950.
Certain conventions have gradually evolved over a period of time which have proved useful in the working of the constitution.
The British Constitution is an example of unwritten constitution. It is to be noted though, that a written constitution is ‘mainly’ an enacted document, there could be bodies or institutions which may not be included in the constitution but form an important part of governance.
In Indian context one can mention the Planning Commission. It is very important body for country’s planning and development. But, the planning commission was set up in March 1950, not by an Act of Parliament, nor as a Part of the Constitution of India.
It was set up by a cabinet resolution. The Indian constitution is the lengthiest in the world. The original constitution had 395 Articles and 8 Schedules, while, the constitution of USA has only 7 Articles.

Federal Polity

India has adopted a federal structure. In a federation there are two distinct levels of governments. There is one government for the whole country which is called the Union or Central Government. Also there is government for each Unit/State.
The United States of America is a federation whereas the United Kingdom (Britain) has a unitary form of government. In a unitary structure there is only one government for the whole country and the power is centralised. The Constitution of India does not use the term ‘federal state’.
It says that India is a ‘Union of States’. There is a distribution of powers between the Union/Central Government and the State Governments. Since India is a federation, such distribution of functions becomes necessary.
There are three lists of powers such as Union List, State List and the Concurrent List. These lists have been explained in Lesson 8 in detail.
On the basic of this distribution, India may be called a federal system. The supremacy of the judiciary is an essential feature of a federation so that the constitution could be interpreted impartially. In India, the Supreme Court has been established to guard the constitution.
However, in case of Indian federalism, more powers have been given to the Union Government in administrative, legislative, financial and judicial matters.
In fact, The Indian federal set up stands out with certain distinctive unitary features.
The makers of our constitution while providing for two sets of government at the centre and in the states provided for division of powers favouring the Central Government, appointment of the Head of the State government by the Central Government, single unified judiciary, single citizenship indicate the unitary nature of our federalism. Therefore, it is said that India has a quasi-federal set up.

Fundamental Rights and Fundamental Duties

Every human being is entitled to enjoy certain rights which ensure good living. In a democracy all citizens enjoy equal rights. The Constitution of India guarantees those rights in the form of Fundamental Rights. Fundamental Rights are one of the important features of the Indian Constitution.
The Constitution provides for six Fundamental Rights about which you will read in the following lesson. Fundamental Rights are justiciable and are protected by the judiciary. In case of violation of any of these rights one can move to the court of law for their protection. Fundamental Duties were added to our Constitution by the 42ndAmendment.
It lays down a list of ten Fundamental Duties for all citizens of India. While the rights are given as guarantees to the people, the duties are obligations which every citizen is expected to perform

Part III of the Indian Constitution guarantees six fundamental rights to all the citizens:

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

Drawn From Various Sources

The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act of 1935.
Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World’.
The structural part of the Constitution is, to a large extent, derived from the Government of India Act of 1935. The philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derives their inspiration from the American and Irish Constitutions respectively. The political part of the Constitution (the principle of Cabinet Government and the relations between the executive and the legislature) has been largely drawn from the British Constitution.
The other provisions of the Constitution have been drawn from the constitutions of Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan, and so on.
However, the criticism that the Indian Constitution is a ‘borrowed Constitution’, a ‘patchwork’ and contains nothing new and original is unfair and illogical. This is because, the framers of the Constitution made necessary modifications in the features borrowed from other constitutions for their suitability to the Indian conditions, at the same time avoiding their faults.

Blend of Rigidity and Flexibility

Constitutions are also classified into rigid and flexible. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution.
A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.
The Constitution of India is neither rigid nor flexible but a synthesis of both. Article 368 provides for two types of amendments:
Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.
Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.
At the same time, some provisions of the Constitution can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. Notably, these amendments do not come under Article 368.

Parliamentary Form of Government

India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy there is a close relationship between the legislature and the executive. The Cabinet is selected from among the members of legislature.
The cabinet is responsible to the latter. In fact the Cabinet holds office so long as it enjoys the confidence of the legislature. In this form of democracy, the Head of the State is nominal. In India, the President is the Head of the State.
Constitutionally the President enjoys numerous powers but in practice the Council of Ministers headed by the Prime Minister, which really exercises these powers. The President acts on the advice of the Prime Minister and the Council of Ministers.
The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government.
The parliamentary system is based on the principle of cooperation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.

The parliamentary system is also known as the ‘Westminster’model of government, res-ponsible government and cabinet government.
The Constitution establishes the parliamentary system not only at the Centre but also in the states. The features of parliamentary government in India are:

Presence of nominal and real executives;
Majority party rule,
Collective responsibility of the executive to the legislature,
Membership of the ministers in the legislature,
Leadership of the prime minister or the chief minister,
Dissolution of the lower House (Lok Sabha or Assembly).

Even though the Indian Parliamentary System is largely based on the British pattern, there are some fundamental differences between the two. For example, the Indian Parliament is not a sovereign body like the British Parliament. Further, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy).
In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.

Federal System with Unitary Bias

The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, super-macy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.
However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions, and so on.
Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation.
Hence, the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’, ‘quasi-federal’ by K C Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative federalism’ by Granville Austin, ‘federation with a centralising tendency’ by Ivor Jennings, and so on.

Single Integrated Judicial System India

It has a single integrated judicial system. The Supreme Court stands as the apex court of the judicial system. Below the Supreme Court are the High Courts.
The High Courts control and supervise the lower courts. The Indian judiciary, thus, stands like a pyramid with the lower courts as the base, High Courts in the middle and the Supreme Court at the top. Independence of Judiciary Indian judiciary is independent an impartial.
The Indian judiciary is free from the influence of the executive and the legislature. The judges are appointed on the basis of their qualifications and cannot be removed easily.

Single Citizenship

In a federal state usually the citizens enjoys double citizenship as is the case in the USA. In India there is only single citizenship.
It means that every Indian is a citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen of India.
All the citizens of India can secure employment anywhere in the country and enjoy all the rights equally in all the parts of India.

Universal Adult Franchise

Indian democracy functions on the basis of ‘one person one vote’. Every citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective of caste, sex, race, religion or status.
The Indian Constitution establishes political equality in India through the method of universal adult franchise.

Emergency Provisions

The Constitution makers also foresaw that there could be situations when the government could not be run as in ordinary times.
To cope with such situations, the Constitution elaborates on emergency provisions. There are three types of emergency;

Emergency caused by war, external aggression or armed rebellion;
Emergency arising out of the failure of constitutional machinery in states; and
Financial emergency

Three-tier Government

Originally, the Indian Constitution, like any other federal constitution, provided for a dual polity and contained provisions with regard to the organisation and powers of the Centre and the states.
Later, the 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government (i.e., local) which is not found in any other Constitution of the world.
The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local governments) by adding a new Part IX and a new Schedule 11 to the Constitution.
Similarly, the 74th Amendment Act of 1992 gave constitutional recognition to the municipalities (urban local governments) by adding a new Part IX-A and a new Schedule 12 to the Constitution.

A Secular State

The Constitution of India stands for a secular state. Hence, it does not uphold any particular religion as the official religion of the Indian State. The following provisions of the Constitution reveal the secular character of the Indian State:

The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42^nd Constitutional Amendment Act of 1976.
The Preamble secures to all citizens of India liberty of belief, faith and worship.
The State shall not deny to any person equality before the law or equal protection of the laws (Article 14).
The State shall not discriminate against any citizen on the ground of religion (Article 15).
Equality of opportunity for all citizens in matters of public employment (Article 16).
All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).
Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26).
No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27).
No religious instruction shall be provided in any educational institution maintained by the State (Article 28).
Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29).
All minorities shall have the right to establish and administer educational institutions of their choice (Article 30).
The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).

The Western concept of secularism connotes a complete separation between the religion (the church) and the state (the politics). This negative concept of secularism is inapplicable in the Indian situation where the society is multireligious.
Hence, the Indian Constitution embodies the positive concept of secularism, i.e., giving equal respect to all religions or protecting all religions equally.
Moreover, the Constitution has also abolished the old system of communal representation, that is, reservation of seats in the legislatures on the basis of religion.
However, it provides for the temporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequate representation to them.

Independent Bodies

The Indian Constitution not only provides for the legislative, executive and judicial organs of the government (Central and state) but also establishes certain independent bodies.
They are envisaged by the Constitution as the bulworks of the democratic system of Government in India. These are:

Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India.
Comptroller and Auditor-General of India to audit the accounts of the Central and state governments. He acts as the guardian of public purse and comments on the legality and propriety of government expenditure.
Union Public Service Commission to conduct examinations for recruitment to all-India services and higher Central services and to advise the President on disciplinary matters.
State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters.

The Constitution ensures the independence of these bodies through various provisions like security of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and so on.

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