INTRODUCTION TO INDIAN CONSTITUTION
Dr. Ambedkar had stated that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. The prophecy of Dr. Ambedkar has proved to be correct beyond all doubts. Constitution has successfully completed more than seventy- five years and continues to hold the faith of citizens.
EVOLUTION OF INDIAN CONSTITUTION
Indian Constitution was adopted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950. It was not a sudden incident but an outcome of long struggle for freedom and gradual development of responsible government.
FEATURE OF INDIAN CONSTITUTION
Indian constitution is the lengthiest constitution of the World. At the time of adoption, it had 395 Articles and 12 schedules. India has adopted parliamentary form of government both at Union as well as State level based on the British Model. Constitution contains provisions which makes Indian Federation lean towards the Union. Indian Constitution is flexible in some aspects and rigid in others.
THE PREAMBLE AND ITS PHILOSOPHY
The Preamble of the constitution is based on the “Objective Resolution” moved by the Jawaharlal Nehru on 13th December, 1946 and adopted by the Constituent Assembly on 22nd January, 1947. Preamble is the key of the mind of constitution makers. The preamble reflects the core philosophy of the Constitution.
UNION AND TERRITORY
Indian and Bharat both are names of the Union. India is a Union of States. Federation word has been deliberately avoided by the Constituent Assembly. India has not come into existence out of agreement of states as is the case with the United States. The territory of India includes territory of States and Union Territory and such other territories which may be acquired. Article 1 to 4 deals with Union and its Territory.
CITIZENSHIP
A citizen can only enjoy all the civil and political rights of a state. If we see in Indian context, a citizen can only vote for electing representatives or occupy public offices. A citizen enjoys all of the Fundamental Rights granted by the Constitution while an alien enjoys only limited Fundamental Rights.
Two major modes of acquisition of citizenship of a State are jus soli and jus sanguinis. Under principle of Jus Soli, citizenship is acquired on the basis of birth within territory of state. Under principle of Jus sanguinis, citizenship is acquired on the basis of citizenship of parents. India follows a mix of these principles.
FUNDAMENTAL RIGHTS
There are certain rights, like right to life, liberty, equality etc., which are essential for human existence. Without these rights there will be no difference between animal existence and human existence. During monarchy or aristocratic rule these rights were hardly recognized. Human beings have been able to acquire these basic rights after long struggle.
RIGHT TO EQUALITY
Article 14 grants every citizen right to equality irrespective of birth, caste, creed and race. Article 14 to 18 covers various aspects of Right to equality.
RIGHT TO FREEDOM
Article 19 grants grants every citizen right to freedom of speech and expression; right to assemble peacefully and without arms; right to form associations or unions; right to move freely throughout territory of India; right to reside and settle in any part of territory of India and right to practice any profession or to carry on any occupation, trade or business. Article 19 (f) also granted right to acquire, hold and dispose of property, which was abolished vide 44th Amendment.
PROTECTION IN RESPECT OF OFFENCES
Article 20 deals with ex post facto laws, double jeopardy and prohibition from self-incrimination. Rights under Article 20 is available to citizens as well as non-citizens.
RIGHT TO LIFE AND LIBERTY
Article 21 grants right to life and liberty to everyone. The Supreme Court has liberally interpreted this article and expanded the horizons of Article 21 substantially.
PROTECTION AGAINST ARREST AND DETENTION
Article 22 protects citizens against arbitrary arrest and detention. Article 22 (1) grants certain rights to persons who have been arrested and detained in custody. Every person who is being arrested and detained in custody has to be informed about the grounds on which he or she is being arrested. Further every such person has right to consult legal practitioner and right to be defended by legal practitioner. Article 22 (2) provides that every arrested person has to be presented before magistrate within twenty four hours of arrest. Time taken in journey from place of arrest to the court of magistrate has to be excluded. No person can be detained in the custody without authority of magistrate. Article 22 (3) provides that protections available under 22 (1) and 22 (2) are not available to a person who is enemy alien or any person who has been detained under law providing for preventive detention.
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RIGHT AGAINST EXPLOITATION
Article 23 prohibits trafficking in human beings. Article 24 prohibits employment of children in factories.
RIGHT TO RELIGION
Article 25 grants right to freedom of conscience and right to profess, practice and propagate religion of his/her choice to every person irrespective of whether he is citizen or non-citizen.Article 26 grants every religious denomination right to manage religious affairs. Article 27 grants freedom to every person from paying taxes for promotion of any particular religion. Article 28 grants exemption from attendance in certain classes of educational institutions.
RIGHT TO CONSTITUTIONAL REMEDIES
Fundamental Rights are justiciable right. A person can approach the Supreme Court under Article 32 if his Fundamental Rights are infringed. Dr. Ambedkar has said that Article 32 is heart and soul of the Indian Constitution.
DIRECTIVE PRINCIPLES OF STATE POLICY
Fundamental Rights are essentially negative obligations on State as they prohibit the State from infringing upon some basic rights of citizens like right to equality, right to life and liberty, right to freedom etc. State has some positive obligations also particularly in a country like India which has got independence after long struggle for freedom and needed rapid socio -economic transformation. Directive Principles are such positive obligations.
Fundamental Rights ensure political democracy while Directive Principles ensures social and economic Democracy. Directive Principles of State Policy are not justiciable rights like that of Fundamental Rights but these rights are fundamental in governance of the country.
Indian Constitution has incorporated Directive Principles of State Policy as Part IV of the Constitution from Article 36 to Article 51. Impact of Socialistic Principles, Gandhian Principles and Liberal Principles can be discerned on various provisions of Directive Principles of State Policy.
FUNDAMENTAL DUTIES
Original Constitution did not have any provision for Fundamental Duties. Congress Party had appointed Swaran Singh Committee for review of the Constitution. Swarn Singh Committee has recommended for incorporation of Fundamental Duties which every citizen owed to the nation. Fundamental duties have been added in the Constitution vide 42nd Amendment Act, 1976 in form of Article 51A on the recommendation of Swaran Singh Committee.
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PRESIDENT
The Union Executive mainly consists of the President and Council of Ministers. India has adopted Parliamentary Form of Government as such the President is the Constitutional Head while the real executive is Council of Ministers headed by Prime Minister.
THE PARLIAMENT
The Parliament is the apex legislative body in India. But Parliament does not discharge only legislative functions. Parliament also exercises control over Council of Ministers through questions, motions, debates and discussions. Parliament also has extensive control over financial matters.
THE SUPREME COURT
The Supreme Court is the apex judicial body in India. Supreme Court is one of the most powerful Courts in the world. The Supreme Court of USA has acquired power of judicial review out of judicial interpretation in the matter of Marbury Vs Madison (1803) , while the Indian Constitution has conferred explicitly power of judicial review on the Supreme Court. The Supreme Court of USA is only a declaratory Court while the Indian Constitution has conferred on the Supreme Court power to execute its order or decree and punish for its contempt.
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COMPTROLLER AND AUDITOR-GENERAL OF INDIA
Dr. Ambedkar has described “Comptroller and Auditor General of India” as the most important officer under the Constitution. Comptroller and Auditor General is also called “guardian of public purse”.
Article 148 provides for Comptroller and Auditor General of India. Comptroller and Auditor-General of India is appointed by the President by warrant under his hand and seal and can only be removed from office in like manner and on the like grounds as a judge of the Supreme Court.
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THE STATE EXECUTIVE
The State Executive mainly consists of the Governor and the Council of Ministers. Governor is Constitutional Head while real executive is Council of Ministers headed by Chief Minister. Governor acts in dual capacity- he is head of State as well link between Union and State
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STATE LEGISLATURE
Article 168 provides for a Legislature in every state which consists of the Governor, the Legislative Assembly and in cases of States of Andhra Pradesh, Bihar, Maharastra, Karnatka, Telangana and Uttar Pradesh a Legislative Council.
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HIGH COURT
High Court is apex judicial body in a State. Some of High Courts have their origin during British Raj. Madras, Calcutta and Bombay High Courts had been established by Royal Charter in 1862. Subsequent to other High Courts were also established. All existing High Courts continued to function subject to provision of the Constitution after independence.
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UNION TERRITORIES
India consists of States and Union territories as mentioned in the 1st Schedule. India has 28 states and eight Union Territories i.e. Andaman and Nicobar Islands, Dadra and Nagar Haveli and Daman & Diu, Chandigarh, Delhi, Puducherry, Lakshdweep, Jammu & Kashmir and Ladakh. In Delhi, Puducherry and Jammu & Kashmir, there is provision of elected Legislative Assembly.
PANCHAYATI RAJ
The local self-government was one of the ideals of Mahatma Gandhi. Article 40 under Directive Principles of State Policy has provision for organization of village panchayats and endowing them with such powers and authority, so that they can function as units of self-government.
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MUNICIPALITIES
Urban Local Government in India has a long history. During the colonial period Municipal Governance was introduced in India in form of Madras Municipal Corporation. Bombay Municipal Corporation and Calcutta Municipal Corporation was established in 1726. After transfer of administration from East India Company to the Crown in 1858 municipal governance got an impetus mainly because of financial reasons. The Government wanted taxes to be locally raised for public health and education. In 1864 resolution was passed for setting up of local administration alongwith the introduction of local taxation. Lord Mayo resolution in 1870 further stressed the need for strengthening municipal institutions. After passing of Mayo resolution various Municipal Acts were passed in provinces.
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THE CO-OPERATIVE SOCIETIES
Co-operative movement has a long history in India. Co-operative Societies Act, 1904 and Co-operative Society Act, 1912 had been enacted before independence. Co-operative society was kept as a state subject under the Indian Constitution..
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THE SCHEDULED AND TRIBAL AREAS
Scheduled tribes are such tribes or tribal communities, or parts of, or groups within such tribes or tribal communities as are mentioned in Scheduled Tribes Order under Article 342. Scheduled Areas are such areas which the President declares to be Scheduled Area.
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LEGISLATIVE RELATIONS BETWEEN UNION AND STATES
Article 245 to 255 deal with legislative relations between the Union and States. Parliament can legislate for whole of territory of India or any part thereof while a State Legislature can legislate for whole of territory of State or a part thereof. The legislative powers are divided in three lists i.e. Union List, State List and Concurrent List. But a centralizing tendency is discernable in scheme of legislative relations. Even on the subjects belonging to State List the Parliament can make law in National Interest. In case of matters belonging to Concurrent List, laws made by Parliament have primacy over laws made by State Legislature. Further, during proclamation of emergency under Article 352 or President Rule under Article 356, Parliament can legislate on matters belonging to State List.
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ADMINISTRATIVE RELATIONS BETWEEN UNION AND STATES
Article 256 to 263 deal with administrative relations between the Union and States. The executive powers of the Union extend to the matters with respect to which Parliament has power to make laws. Similarly, executive Powers of State extend to the matters with respect to which the State Legislature has power to make laws. A centralizing tendency is also discernable in administrative relations as was the case with legislative relations between Union and the States. Executive power of a State has to be exercised in compliance with laws made by Union and the Union can issue directions for the same. If such directions are not complied with, the President under Article 365 can form an opinion that administration of state is not being carried on in accordance with provisions of the Constitution. Further, during proclamation of emergency under Article 352 or President rule under Article 356, administrative functions of State can be discharged by the President.
FINANCIAL RELATIONS BETWEEN UNION AND STATES
There are clear cut division of powers between centre and states in the form of three lists under Union List, State List and Concurrent List under Article 246. The Union Government can impose tax on subjects falling under Union List. State Government can impose tax on subjects falling under State List.
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TRADE, COMMERCE AND INTERCOURSE WITHIN THE TERRITORY OF INDIA
Provisions regarding trade, commerce and intercourse within the territory of India have been incorporated in the Constitution so that uninterrupted trade and commerce can be realized throughout territory of India leading to economic growth.
PUBLIC SERVICE COMMISSIONS
The constitution has provisions of Public Service Commission for independent and fair recruitment to public service.
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TRIBUNALS
Several committees i.e. Administrative Reforms Commission, 1966; Wanchoo Committee, 1970; High Courts Arrear Committee Report, 1972; Swaran Singh Committee , 1976 had recommended establishment of Tribunals for speedy justice. Part XIV was introduced in the Constitution vide 42nd Amendment empowering Parliament and State Legislature to establish Tribunals.
ELECTION COMMISSION
India is a democratic republic and as such the most of important positions under the Indian Polity including that of the President, Member of Parliament, Member of State Legislatures are filled by elections. Impartial and fair elections are critically important for functioning of a democracy. The Constitution has created independent body in form of Election Commission for superintendence, direction and control of elections.
EMERGENCY PROVISIONS
Constitution provides for emergency provisions under Article 352-360. Emergency provisions have been introduced in the Constitution to protect the unity and integrity of the nation in adverse circumstances. During emergency the federal form of the nation partakes unitary character to a great extent as executive and legislative function of state governments can be discharged by President or the Parliament respectively.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
