Unit I : Constitution

Definition and Classification

Definition-A constitution is a fundamental and supreme law or set of principles that establishes the framework for the governance of a nation or an organization. It serves as the foundational legal document that outlines the structure of the government, the distribution of powers among its branches, and the rights and responsibilities of the citizens. Constitutions typically articulate the basic principles, values, and rules that govern the political and legal system of a country.

Constitution according to some famous thinkers-

Several famous thinkers and political philosophers have offered their perspectives on the concept of a constitution. Here are definitions from a few notable figures:

  1. Thomas Hobbes :Hobbes, in his work “Leviathan,” described the constitution as the “artificial man” created by the social contract. He argued that the purpose of a constitution is to establish the authority necessary to maintain order and prevent the chaos that would exist in a state of nature.
  2. John Locke : Locke, in his “Second Treatise of Government,” viewed the constitution as a social contract between the government and the people. He emphasized the protection of natural rights, including life, liberty, and property, and asserted that a legitimate government must derive its authority from the consent of the governed.
  3. Aristotle: – According to him, definition of constitution is the way by which all citizens or constituent parts of the state are organized in relation to each other.
  4. Austin: – stated the definition of constitution as, “It fixes the structure of supreme government.”

Regardless of the form, a constitution is a critical element in providing a legal and political foundation for a society, guiding the functioning of its institutions, and safeguarding the rights and liberties of its citizens.

Classification

Constitutions can be classified in various ways based on different criteria. Here are a few common classifications of constitutions along with examples:

  1. Written and Unwritten Constitutions:
    • Written Constitution: A constitution that is codified into a single, formal document. Examples include the United States Constitution, the Indian Constitution, and the German Basic Law.
    • Unwritten Constitution: A constitution that is not found in a single written document but is based on statutes, conventions, judicial decisions, and other sources. The United Kingdom is often cited as an example of a country with an unwritten constitution.
  2. Rigid and Flexible Constitutions:
    • Rigid (or Entrenched) Constitution: A constitution that is difficult to amend and typically requires a special and elaborate procedure for changes. Examples include the United States Constitution and the Indian Constitution.
    • Flexible Constitution: A constitution that can be amended more easily and through regular legislative processes. The United Kingdom has a flexible constitution.
  3. Federal and Unitary Constitutions:
    • Federal Constitution: A constitution that establishes a federal system of government, dividing powers between a central government and regional or state governments. Examples include the United States Constitution, the Canadian Constitution, and the German Basic Law.
    • Unitary Constitution: A constitution that establishes a unitary system of government, where all powers are concentrated in a central government. The United Kingdom is an example of a country with a unitary constitution.
  4. Presidential and Parliamentary Constitutions:
    • Presidential Constitution: A constitution that establishes a separation of powers between the executive and legislative branches, with a directly elected president serving as the head of state and government. Examples include the United States Constitution and the Brazilian Constitution.
    • Parliamentary Constitution: A constitution where the executive is drawn from and accountable to the legislature. The United Kingdom and India have parliamentary constitutions.
  5. Monarchical and Republican Constitutions:
    • Monarchical Constitution: A constitution that recognizes a hereditary monarch as the head of state. The United Kingdom, with its constitutional monarchy, is an example.
    • Republican Constitution: A constitution that establishes a republic with an elected head of state. The United States Constitution and the French Constitution are examples.

These classifications are not mutually exclusive, and many constitutions exhibit characteristics from more than one category. The diversity in constitutional design reflects the varied political and historical contexts of different nations.

Sources of Constitution

The Indian Constitution, adopted in 1950, draws inspiration and specific features from various sources. Here’s a detailed breakdown:

1. Government of India Act, 1935: Considered the primary source, this British act laid the foundation for a federal structure, parliamentary system, and an independent judiciary. Features borrowed include:

  • Federal System: Division of power between the center and states.
  • Parliamentary System: Bicameral legislature with a Lok Sabha and Rajya Sabha.
  • Office of the President: Head of state with limited executive power.
  • Judiciary: Supreme Court and High Courts with powers of judicial review.
  • Emergency Provisions: Special powers granted to the government during emergencies.
  2. Cabinet Mission Plan (1946): The Cabinet Mission Plan of 1946 played a role in shaping the federal structure of the Indian Constitution. It proposed a decentralized union with strong provinces, and this idea is reflected in the distribution of powers between the center and the states in the Indian Constitution.
  3. Indian Independence Act, 1947: The Indian Independence Act, 1947, marked the formal beginning of the process of framing the Indian Constitution. It led to the establishment of the Constituent Assembly and provided the framework within which the constitution-making process took place.
  4. Constituent Assembly Debates: The deliberations and debates within the Constituent Assembly itself are an essential source. The framers of the Indian Constitution discussed and debated various provisions, drawing on diverse influences and the specific needs of the Indian society.

*Features adopted from different countries

The Indian Constitution draws inspiration from various countries and incorporates features from their constitutional systems. Here are some countries and the features adopted in the Indian Constitution:

  1. United Kingdom:
    • Parliamentary System: The Indian Constitution adopts the British parliamentary system, including features like the President as the ceremonial head of state, Prime Minister as the head of government, and the Council of Ministers responsible to the legislature.
  2. United States:
    • Fundamental Rights: The concept of fundamental rights in the Indian Constitution is influenced by the U.S. Bill of Rights. The Indian Constitution also features judicial review, a concept derived from the U.S. Constitution.
  3. Ireland:
    • Directive Principles of State Policy: The Directive Principles of State Policy in the Indian Constitution draw inspiration from the Irish Constitution. These principles provide guidelines for the state in formulating policies for social and economic justice.
  4. Canada:
    • Federal System: The Indian Constitution establishes a federal system with a division of powers between the central government and the states, similar to the Canadian model. However, India has a strong unitary bias during emergencies.
  5. Australia:
    • Concurrent List: The division of powers between the center and the states in the Indian Constitution, particularly the existence of a Concurrent List, is inspired by the Australian Constitution.
  6. South Africa:
    • Amendment Procedure: The Indian Constitution’s amendment procedure is influenced by the South African Constitution, particularly the requirement for a special majority for certain amendments.
  7. France:
    • Preamble Ideals: The ideals of liberty, equality, and fraternity in the Preamble of the Indian Constitution are inspired by the French Revolution. The French Constitution’s concepts of a republic and justice also influence the Indian Constitution.
  8. Soviet Union:
    • Fundamental Duties: The Indian Constitution incorporates the concept of fundamental duties, inspired by the Soviet Constitution, which emphasizes the responsibilities of citizens towards the state.
  9. Japan:
    • Procedure Established by Law: The Indian Constitution’s adoption of “Procedure Established by Law” in Article 21 is influenced by the legal system of Japan.
  10. Germany:
    • Suspension of Fundamental Rights: During emergencies, the Indian Constitution allows for the suspension of fundamental rights, a concept influenced by the German Basic Law.

It’s important to note that while the Indian Constitution has drawn inspiration from various countries, it has also adapted and customized these features to suit the specific needs and circumstances of India. The Constitution reflects a unique blend of global influences and indigenous principles.

Constitutional Conventions

Constitutional conventions are an interesting aspect of any political system, especially those with unwritten constitutions like the UK or partly unwritten ones like India. They are unwritten but well-established practices and norms that guide the conduct of government institutions and officials. While not legally enforceable, they hold significant weight due to tradition, precedent, and political expectations.

Here’s a breakdown of key aspects of constitutional conventions:

What they are:

  • Informal and unwritten: Unlike codified laws, conventions exist outside the formal legal framework.
  • Flexible and adaptable: They can evolve over time to reflect changing circumstances and political realities.
  • Promote smooth functioning: By establishing expectations for behavior, they ensure the stability and predictability of government institutions.

Examples of conventions:

  • In the UK:
  • The Prime Minister must resign if they lose the confidence of the House of Commons.
  • The Monarch remains politically neutral and acts on the advice of the Prime Minister.

In India:

  1. Prime Ministerial Leadership:
    • Cabinet System: The convention of collective responsibility within the Cabinet ensures that decisions are made collectively, and all members publicly support the decisions taken, even if there are dissenting views during internal discussions.
  2. President’s Role:
    • Ceremonial Head: The President of India, as the ceremonial head of state, follows the convention of acting on the advice of the Council of Ministers. While the President has discretionary powers, they are expected to act on the advice of the Prime Minister and the Cabinet.
  3. Governor’s Role:
    • Governor’s Discretion: Similar to the President, Governors of states exercise their powers on the advice of the Chief Minister and the Council of Ministers. The convention is that the Governor acts according to the advice of the elected government.
  4. No-Confidence Motion:
    • Government’s Accountability: The convention is that if a government loses a vote of no confidence in the Lok Sabha (House of the People), the Prime Minister resigns, and the President invites the leader of the opposition or the leader of the next largest party to form a government.
  5. Speaker’s Neutrality:
    • Speaker’s Impartiality: The Speaker of the Lok Sabha is expected to be impartial and act in a non-partisan manner. The convention is that the Speaker, once elected, severs all ties with their political party.
  6. Governor’s Address:
    • Governor’s Address: At the beginning of every session of the state legislative assembly and Parliament, the Governor and the President, respectively, address the members outlining the policies and programs of the government. The convention is that the Governor’s and President’s speeches reflect the policies of the ruling party or coalition.
  7. Council of Ministers:
    • Collective Responsibility: The convention of collective responsibility applies not only to major policy decisions but also to the conduct of individual ministers. If a minister disagrees with a government decision, the convention is to resign.
  8. Judicial Review:
    • Independence of the Judiciary: While judicial review is a constitutional power, it has become a convention for the judiciary to act independently and as a check on the executive and legislative branches.
  9. Appointment of Judges:
    • Collegium System: Though not explicitly mentioned in the Constitution, the convention of the collegium system has developed for the appointment and transfer of judges in the higher judiciary.
  10. Anti-Defection Law:
    • Disqualification of Members: The Anti-Defection Law, while statutory, has become a convention for maintaining the stability of the government and discouraging defections from political parties.

Importance of conventions:

  • Supplement formal rules: They fill gaps in written laws and address situations not explicitly covered.
  • Maintain trust and legitimacy: By fostering norms of respect and cooperation, they contribute to political stability and public trust.
  • Can evolve with changing times: Their informal nature allows them to adapt to new situations and societal changes.

Limitations of conventions:

  • Lack of clarity and enforcement: The absence of formal codification can lead to ambiguity and differing interpretations.
  • Vulnerable to political manipulation: Conventions rely on goodwill and respect, which can be exploited for partisan gains.
  • Difficult to challenge: Since they are not laws, there’s no legal recourse for violations, making them reliant on political pressure.

India’s perspective:

  • While India has a partly written constitution, conventions play a crucial role in its interpretation and practice.
  • Key examples include the Cabinet’s collective responsibility, the Speaker’s neutrality, and the President’s non-partisan role.
  • The Supreme Court has recognized the importance of conventions while acknowledging their non-enforceable nature.

Conclusion:

Constitutional conventions, despite their limitations, serve as valuable tools for fostering smooth governance and political stability. Understanding their nuances is crucial for comprehending the dynamics of power, accountability, and the unwritten rules that shape a nation’s political landscape.

Salient features of Indian Constitution

The Indian Constitution, adopted on January 26, 1950, is a comprehensive document that reflects the aspirations and values of a diverse and democratic nation. Some of its salient features include:

  1. Preamble: The Preamble of the Indian Constitution declares India to be a sovereign, socialist, secular, and democratic republic that assures justice, liberty, equality, and fraternity to its citizens.
  2. Lengthy and Detailed: The Indian Constitution is one of the lengthiest and most detailed written constitutions in the world. It originally had 395 Articles, 8 Schedules, and 22 Parts, though amendments have been made over time.
  3. Federal Structure with Unitary Bias: India has a federal structure with a division of powers between the central government and the states. However, during emergencies, the Constitution allows for a shift toward a more unitary system.
  4. Parliamentary System: India follows the British parliamentary system with a President as the ceremonial head of state and a Prime Minister as the head of government. The Council of Ministers is collectively responsible to the Lok Sabha (House of the People).
  5. Fundamental Rights: The Indian Constitution guarantees fundamental rights to its citizens, including the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and the right to constitutional remedies.
  6. Directive Principles of State Policy: The Directive Principles of State Policy provide guidelines to the state for enacting laws and policies to promote the welfare of the people, social justice, and economic development.
  7. Fundamental Duties: The Constitution includes a list of fundamental duties that citizens are expected to follow, promoting a sense of responsibility and patriotism.
  8. Amendment Procedure: The Constitution provides for its own amendment through a well-defined procedure. Amendments can be made by a special majority of both houses of Parliament.
  9. Independent Judiciary: The judiciary in India is independent and has the power of judicial review. The Supreme Court is the highest court of appeal and can review the actions of both the executive and legislative branches.
  10. Universal Adult Franchise: The Constitution provides for universal adult suffrage, ensuring that every citizen over the age of 18 has the right to vote, irrespective of caste, creed, religion, or gender.
  11. Secularism: India is a secular state, with no official state religion. The Constitution guarantees freedom of religion and prevents discrimination on religious grounds.
  12. Social Justice and Equality: The Constitution emphasizes social justice and strives to eliminate social and economic inequalities. It includes provisions for reservations in education and public employment for historically marginalized communities.
  13. Election Commission: The Constitution establishes an independent Election Commission to conduct free and fair elections at the national and state levels.
  14. Emergency Provisions: The Constitution includes provisions for declaring a state of emergency in case of war, external aggression, or armed rebellion. During emergencies, the central government gains more powers.
  15. Single Citizenship: India follows the principle of single citizenship, where every citizen is a citizen of the country as a whole, as opposed to a federal system where citizens also hold state citizenship.

Rule of Law

he rule of law is a fundamental principle of governance that emphasizes the supremacy of the law and the equality of all individuals before the law. It ensures that no one, including government officials and authorities, is above the law. The rule of law is a cornerstone of democratic societies and is essential for the protection of individual rights, the prevention of arbitrary actions, and the promotion of justice.

Key elements of the rule of law include:

  1. Equality and Fairness:
    • The rule of law requires that all individuals, regardless of their status or position, are equal before the law. It promotes the idea that everyone should be treated fairly and without discrimination.
  2. Legal Certainty:
    • Laws should be clear, accessible, and consistently applied. Citizens should be able to understand the laws that govern them, and the legal system should provide predictability in its application.
  3. Due Process:
    • The rule of law requires that legal proceedings be fair and just. This includes the right to a fair trial, access to legal representation, the presumption of innocence until proven guilty, and protection against arbitrary detention.
  4. Limitation on Government Powers:
    • The authority of government officials and institutions is limited by law. The rule of law prevents arbitrary and unchecked use of power by establishing clear legal frameworks and procedures that government entities must follow.
  5. Transparency:
    • Decisions made by government authorities and institutions should be transparent and open to public scrutiny. This ensures accountability and allows citizens to understand how and why decisions are made.
  6. Accountability:
    • The rule of law requires that those who exercise governmental power are accountable for their actions. This accountability can be through legal mechanisms, administrative processes, or other checks and balances within the system.
  7. Access to Justice:
    • The rule of law necessitates that individuals have access to an impartial and effective judicial system to seek remedies for legal violations. This ensures that justice is not only done but is also seen to be done.
  8. No Arbitrary Power:
    • The rule of law rejects the idea of arbitrary power and dictates that all exercises of authority must be based on law. Government actions must be authorized by law, and individuals should not be subject to random or unpredictable actions by those in power.
  9. Protection of Human Rights:
    • The rule of law is closely tied to the protection of fundamental human rights. It ensures that laws and actions of the government do not infringe upon the basic rights and freedoms of individuals.
  10. Consistency in Application:
    • Laws should be applied consistently to all individuals and situations. No one should be exempt from legal consequences based on personal relationships, wealth, or other arbitrary factors.

The rule of law is crucial for the establishment of a just and orderly society. It creates a framework that upholds individual liberties, promotes accountability, and fosters public trust in the legal and political system. In democracies, the rule of law is a fundamental principle that helps safeguard the rights and freedoms of citizens.

Separation of Powers

The concept of separation of powers in India is not explicitly mentioned in the Constitution as a rigid and absolute division of powers among the three branches of government — the Legislature, the Executive, and the Judiciary. However, the idea of separation of powers is inherent in the constitutional structure, and there is a functional separation with checks and balances to prevent the abuse of power. The Constitution of India establishes a parliamentary system with some features of the separation of powers. Here’s how the separation of powers is implemented in India:

  1. Parliamentary System:
    • India follows a parliamentary system of government where the Executive is drawn from the Legislature. The President is the ceremonial head of state, and the Prime Minister is the head of government. The Council of Ministers, headed by the Prime Minister, is responsible to the Lok Sabha (House of the People).
  2. Executive:
    • The executive power is vested in the President of India, but it is exercised by the Council of Ministers with the Prime Minister at the head. The President’s role is largely ceremonial, and they act on the advice of the Council of Ministers.
  3. Legislature:
    • The Parliament, consisting of the Lok Sabha and the Rajya Sabha (Council of States), is the primary legislative body. Members of the Lok Sabha are elected, and members of the Rajya Sabha are elected by the elected members of the State Legislative Assemblies and by the members of the Electoral College for Union Territories. The Parliament makes laws, and the executive is accountable to it.
  4. Judiciary:
    • The judiciary in India is independent and has the power of judicial review. The Supreme Court is the apex court, and it interprets the Constitution and safeguards the fundamental rights of citizens. The judiciary can strike down laws or executive actions that violate the Constitution.
  5. Checks and Balances:
    • The Constitution provides for various checks and balances to prevent the arbitrary use of power. For example, the President has the power to return a bill for reconsideration, and the judiciary has the authority to review the constitutionality of laws and executive actions.
  6. Impeachment Process:
    • The Constitution provides for the impeachment of the President and judges of the Supreme Court and High Courts in cases of “proved misbehavior or incapacity.” This process is a check on the powers of the Executive and the Judiciary.
  7. Attorney General and Advocate General:
    • The Constitution provides for the appointment of the Attorney General of India at the central level and the Advocate General at the state level. They act as legal advisors to the government and play a role in maintaining the balance between the Executive and the Judiciary.

While India’s constitutional framework does not strictly adhere to a complete separation of powers, it incorporates a system of checks and balances to ensure that no single branch of government becomes too powerful. The idea is to maintain harmony and cooperation among the three branches while allowing each to perform its functions independently.

CONSTITUTIONAL STATUS ON SEPARATION OF POWERS IN INDIA

Separation of powers is a part of the basic structure of the Constitution, Let us take a look at some of the articles of the Constitution which suggest separation of powers-

Article 50 Separation of judiciary from executive, this article suggests that the State shall take steps to separate the judiciary from the executive in the public services of the State.

Article 123  The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211 These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361 The President and Governors enjoy immunity from court proceedings.

JUDICIAL PRONOUNCEMENT ON SEPARATION OF POWERS

Landmark Cases:

  • Ram Jawaya Kapoor v. State of Punjab (1955): Established that while India doesn’t adopt a strict separation of powers, different organs have distinct functions and shouldn’t encroach on each other’s roles.
  • I.C. Golaknath v. State of Punjab (1967): Clarified that Parliament’s power to amend the Constitution isn’t absolute but bound by “basic structure” principles, protecting fundamental rights.
  • Kesavananda Bharati v. State of Kerala (1973): Upheld the “basic structure” doctrine, further strengthening limits on Parliament’s amendment power and protecting essential features of the Constitution.
  • Swaran Singh v. Union of India (1998): Declared the Governor’s pardon power unconstitutional in this case, highlighting judicial review as a check on the executive’s actions.
  • Kihota Monto v. Union of India (2011): Recognized the concept of “judicial independence” as a part of the basic structure, safeguarding the judiciary’s autonomy.

These pronouncements highlight several key takeaways:

  • The judiciary acts as a guardian of the Constitution and enforces checks and balances.
  • The basic structure doctrine protects fundamental rights from absolute legislative power.
  • Judicial review allows the judiciary to strike down laws and executive actions deemed unconstitutional.

However, it’s important to note that:

  • There’s ongoing debate on the scope and interpretation of the basic structure doctrine.
  • Achieving optimal balance between different branches remains a complex challenge.
  • Political and institutional factors can influence judicial pronouncements to some extent.

Further Exploration:

  • Shayara Bano Habib v. Union of India (2020): This recent case involved challenges to the Citizenship Amendment Act and raised questions about the interplay between the legislature, executive, and judiciary in sensitive matters.
  • Comparative studies of separation of powers in other countries provide additional context and perspectives.