CONSTITUTIONAL LAW

A constitution means a document having a special legal sanctity which sets out the framework and
the principal functions of the organs of the Government of a State and declares the principles
governing the operation of those organs.
THE NATURE OF THE INDIAN CONSTITUTION

A constitution may be either unitary or federal. In a unitary constitution the powers of the
government are centralized in one government, ie, the central government. In federal constitution,
there is a division of power between state and central government and both are independent in their
own spheres.

There is a difference of opinion whether our constitution is federal or not. One view is that it is a
quasi-federal constitution with more unitary features than federal. The other view is that it is a
federal constitution with a novel feature adopting itself to national emergencies. The view of the
framers of the constitution is that the Indian Constitution is a federal constitution.

American Constitution is the best example of federal constitution. It establishes dual polity or dual
form of government. The power of both the central and state governments are divided and both
are independent in its own spheres.
ESSENTIAL CHARACTERISTICS OFA FEDERAL CONSTITUTION
A federal constitution usually has the following characteristics:
1. Distribution of Powers

Federalism means distribution of powers between central and state governments, each coordinated
and controlled by the constitution. Matters of national importance is entrusted with the union and
matters of local concern remains with the state.
2. Supremacy of Constitution

A federal state derives its powers from the constitution. Every power, executive, legislative or
judicial is subordinate to and controlled by the constitution. The constitution in a federal state is
the supreme law of the land.
3. A Written Constitution

A federal constitution must have a written constitution. It will be practically impossible to maintain
supremacy of constitution unless its terms are reduced into writing.
4. Rigidity

The procedure for amendment of the constitution is rigid. In a rigid constitution, the procedure of
amendment is very complicated and difficult. It simply means that the power of amending the
constitution should not remain exclusively with either the central or the state governments. A
constitution is considered as the permanent document. The supremacy of the constitution can only
be maintained if the method of amending is rigid.
5. Authority of Courts

In order to maintain distribution of powers, there must be an impartial and independent authority
like judiciary. Judiciary is the final power to interpret the constitution and guard the provisions of
the Constitution.
Indian Constitution possesses all the characteristics of a federal constitution mentioned above.
There is a division of powers between the central government at one level and the state
governments at the other. Each government is supreme in its own sphere. The constitution of India
is written and supreme. The provisions which are important cannot be altered by simple majority.
The Supreme Court decides disputes between central and state, between states and interpret
provisions of the constitution.
UNITARY FEATURES OF THE INDIAN CONSTITUTION
At certain circumstances constitution empowers the Centre to interfere into the state matters and
thus places state in subordinate position which violates the federal principle. Therefore, quasi-
federal, unitary with federal features or federal with unitary features are used.

According to Jennings, constitution is characterized as ‘A federation with a strong centralizing

tendency’.
Indian Constitution differs from its federal principle in the following:
1. Appointment of Governors

The governors are appointed by the President and are answerable to him. There are provisions in
the constitution where the governor is required to send certain state laws to the President for assent.
The president has power to veto on state laws. An example of veto power exercised is on Kerala
Educational Bill.
2. Parliament’s power to legislate in the national interest

Article 249 empowers Parliament to make laws with respect to every matter enumerated in the
state list if the rajya sabha passes a resolution by two-third majority that it is necessary in the
national interest.
3. Parliament’s power to form new States and alter boundaries of existing States

Article 3 provides that the Parliament may form new States; it many increase or diminish the area
of any state and it many alter the boundaries or name of any state. Hence, existence of state depends
on the will of Central government.
 4. Emergency Provisions
Constitution envisages three types of emergencies:

a. Emergency caused by war or external aggression or armed rebellion (Art. 352)

b. Emergency caused by failure of constitutional machinery in states (Art. 356)
c. Financial emergency (Art. 360)

When national emergency is declared, parliament is empowered to make laws in any matter in
state list. The Centre can give any direction to any state as to the manner in which the state’s
executive power is to be exercised. The president may direct any modification as to distribution of
revenue between Centre and state as he thinks fit. Under Art. 356, the President can dismiss the
State Ministry and dissolve the legislature and assume all functions of State. Thus, the normal
distribution of power which is the basic feature of federal constitution is completely suspended.

These provisions enables a Government to convert it into a unitary state which affects the federal
character. Indian Constitution is mainly federal with unique safeguards for enforcing national unity
and growth. According to V. G. Ramachandran, India is federal and America is more federal.
SALIENT FEATURES OF INDIAN CONSTITUTION
The following are the salient features of the Indian constitution:
1. The lengthiest constitution in the world

The Indian Constitution is the lengthiest and the most detailed of all the written constitutions of
the world. The Indian Constitution originally consisted of 395 Articles divided into 22 Parts and 8
Schedules. The last numbered Article is 395 and there are 25 Parts and 12 Schedules currently in
the Constitution.
This extraordinary bulk is due to several reasons:

a. The framers of the Constitution have gained experience from the working of all the known
constitutions. In order to avoid the loopholes and defects which were faced by many of
these Constitutions, they have adopted a constitution which has the best features of all these
constitutions. Accordingly they framed Fundamental Rights from the American
Constitution, parliamentary system of govt. from the UK Constitution, DPSP from Irish
Constitution and added the elaborate provisions of emergency in the light of the
Constitution of German Reich and the Govt. of India Act, 1935.
b. The Indian Constitution lays down the structure not only of the Central Govt. but also for
the State Govt. unlike the US Constitution.
c. The vastness of the country and the use of different languages by the people in India has
also added to the bulk of the Constitution.
d. The Constitution contains a long list of Fundamental Rights and also a number of Directive
Principles which confers no justifiable rights upon the individual.
 Establishment of a Sovereign, Socialist, Secular, Democratic Republic

The Preamble of the Constitution declares India as a Sovereign, Socialist, Secular, Democratic
Republic. The word ‘Sovereign’ means that both internally and externally India is independent
of external authorities. It is no longer dependent on outside authorities. The word ‘Socialist’
was added to the constitution by the 42nd Amendment. It means some form of ownership on
the means of production and distribution by the State. The term ‘secularism’ was also added
to the constitution in the 42nd amendment. It means a State has no religion of its own as
recognized religion of the State. It treats all religion equally. The term ‘democratic’ means the
constitution has established a form of Govt. which gets its authority from the will of the people.
Justice, Liberty, Equality and Fraternity which are the essential characteristics of the
democracy are declared in the Preamble of the constitution as the very objectives if the
Constitution. The word ‘Republic’ signifies that there shall be an elected head of the state who
will be the chief executive head. The President of India is the elected person who is the head
of the State.
2. Parliamentary form of Government.

The Constitution of India establishes parliamentary form of Govt. both at the Centre and the State.
The President is the Constitutional head of the State. The real executive power is vested in the
Council of Ministers whose head is the Prime Minister. The Council of Ministers have a collective
responsibility towards the Lok Sabha.
Difference between Parliamentary form and Presidential Form
Parliamentary Form:

The essence of parliamentary form is the responsibilities of the State. President is the
Constitutional head of the State. The real executive power is vested in the Council of Ministers
whose head is the Prime Minister. The council of ministers is collectively responsible to the lok
sabha and the members of lok sabha is elected for a term of 5 years.
Presidential Form:

It is based on the principle of separation of power. The President is the real executive, who is
directly elected by the people for 4 years. All executive powers are vested on him. He is not
responsible to the lower house.

Parliamentary form Presidential form

1. There is collective responsibility in the 1. President is free from sectional and
Govt. party disputes. President is not
accountable to the legislature.
2. There is no separation of powers. 2. There is separation of power.
 3. The Prime Minister is the leader, 3. The President heads the govt. elected
chosen from the majority party. The by the people. He has the most power.
Central legislature is supreme.
4. The President is the head of the State, 4. the President is the head of the state
and the Prime Minister is the head of as well as head of the govt.
the Govt.

Advantages of Presidential Form:

1. The chief executive in a presidential form is relatively free from sectional and party
disputes.
2. He is free to choose his team of ministers from the best talent available in the country.
3. It discourages the disease of defections and maintains discipline among the members of the
political party.
Advantages of Parliamentary Form:

1. It is a responsible govt.
2. The Prime Minister who enjoys 2/3 majority in parliament is much more powerful than the
president of US.
3. There is nothing to prevent the prime minister to choose the best talent from outside for his
cabinet and get them elected or nominated to either house of parliament
4. The disease of defection can be removed by appropriate legislation.
Reasons to prefer Parliamentary Form in India:

1. This system was already in existence in India and people know how it works
2. It provides accountability of ministers to legislature
Issues faced by Parliamentary Form in India:

1. Multiplicity of political parties

2. Evil of defection
3. Lack of cohesiveness and leadership in National parties
4. Criminalization of politics.
3. Unique blend of Rigidity and Flexibility

A rigid constitution is one which requires a special method of amendment of any of its provisions
while in flexible Constitution any of its provisions can be amended by ordinary legislative process.
A written constitution is generally said to be rigid. The Indian constitution though written is
sufficiently flexible. It is only a few provisions of the Constitution that require the consent of half
of the State Legislatures.
4. Fundamental Rights
Fundamental rights are contained in the Part III of the Indian Constitution. These rights are
prohibitions against the State. The State cannot make a law which takes away or abridges any of
the rights of the citizens guaranteed in the part III of the Constitution. If it passes such a law, it
may be declared unconstitutional by the courts. Our constitution has, therefore, conferred on the
Supreme Court, the power to grant most effective remedies in the nature of writs, Habeas Corpus,
Mandamus, Certiorari, Quo Warranto and Prohibition whenever these rights are violated.
However, fundamental rights are not absolute, it is subject to certain restrictions. Thus, our
constitution tries to strike a balance between the individual liberty and the social interest.
5. Directive Principles of State Policy
The DPSP is contained in Part IV of the Constitution. It sets out the aims and objectives to be taken
up by the states in the governance of the country. Unlike the fundamental rights, these rights are
not justiciable (not enforceable). If the state is unable to implement any provisions of Part IV, no
action can be brought against the State in a Court of law.
6. A Federation with Strong Centralizing Tendency

The most remarkable feature of the Indian Constitution is that being a Federal Constitution it
acquires a unitary character during the time of emergency. During the proclamation of emergency
the normal distribution of powers between the Centre and states undergoes a vital change. The
union parliament is empower to legislate on any subjects mentioned in the state list. The Central
Govt. is empowered to give directions to the states as to the manner in which it should exercise its
executive powers. The financial arrangements between the Centre and States can also be altered
by the Union Government. Thus during the proclamation of emergency all powers are centralized
in the union Govt. and constitution acquires a unitary character. This combination of federal and
unitary system is a unique feature of the Indian Constitution.
7. Adult Suffrage

Under the Indian Constitution every man and woman above 18 years of age has been given the
right to elect representatives for the legislature. Before the 61st amendment to the constitution the
age required was 21 years.
8. An Independent Judiciary

When there is a right there must be a remedy. For the enforcement of the fundamental rights
guaranteed in the Constitution there must be an independent and impartial judiciary. For this
purpose an independent and impartial judiciary with a power of judicial review has been
established under the Indian Constitution. It is the custodian of the rights of citizens. It also
determines the limits of power of the Centre and States.
9. A Secular State
A secular state has no religion of its own as recognized religion of state. It treats all religion
equally. Art 25-28 of the constitution deals with secularism. It guarantees to every person the
freedom of conscience and the right to profess, practice and propagate religion. However, the
freedom of religion is not absolute. It is subject to restrictions. In the name of religion nothing can
be done which is against public order, morality and health of the public.
10. Single Citizenship

Though the constitution is federal provides for dual polity, it provides for single citizenship for the
whole of India. The American Constitution provides for dual citizenship, ie, the citizen of America
and the state citizenship. On the other hand there is only one citizenship in India. There is no state
citizenship. Every Indian is a citizen of India and enjoys the same rights of citizenship no matter
what State he resides.
11. Fundamental Duties

The 42nd amendment to the Constitution introduced the fundamental duties to the Indian
Constitution. The FDs are intended to serve as a constant reminder to every citizen that while the
constitution has specifically conferred on them certain FRs, it also requires the citizens to observe
certain basic norms of democratic conduct and democratic behaviours.
12. Judicial Review

Judicial review is the power of courts to pronounce upon the constitutionality of legislative acts
which fall within their normal jurisdiction to enforce. It also includes the power of the court to
refuse the enforcement of a legislation if they find it to be unconstitutional and hence void.
In A K Gopalan v. State of Madras, it was held that in India, the constitution is supreme and the
statute laws must be in conformity with the constitution and it is for the judiciary to decide whether
any enactment is constitutional or not.

In Kesavananda Bharati v. State of Kerala, it has been held that judicial review is the basic feature
of the constitution and therefore it cannot be damaged or destroyed by amending the constitution.

In L. Chandra Kumar v. Union of India, the SC has held that the power of judicial review of
legislative action as vested in the HC under Art 226 and in the SC under Art 32 is a part of the
basic structure of the constitution and cannot be excluded even by a constitutional amendment.
AMENDMENT OF THE INDIAN CONSTITUTION ( Art. 368)

The Indian Constitution is neither too rigid nor too flexible. The states which follow federal
constitution like America, Canada, Australia, etc. have a rigid constitution which makes the
process of amendment difficult. When a constitution does not provide for amendment, there arises
chances for a revolution as no generation has much wisdom to make a constitution which fulfils
the requirements of all generations. If a constitution is flexible in amendment, then the ruling party
will make amendments according to their wishes and this is also not acceptable. The Constitution
makers have therefore kept a balance between the danger of having non amendable and a
constitution which is too easy to amend.
Modes of Amendment

For the purpose of amendment the various Articles of the Constitution are divided into three
categories:
1. Amendment by Simple Majority

Articles 5 (Citizenship), 169 (abolition or creation of legislative councils in states) and 239A
(creation of local Legislatures or Council of Ministers or both for certain Union Territories) can
be amended by simple majority like passing an ordinary law as these articles are excluded from
the purview of the procedure prescribed for amendment under Art 368.
2. Amendment by Special Majority

All constitutional amendments except those referred above must be effected by a majority of the
total membership of each house of parliament as well as by a majority of not less than two-third
of the members of that house present and voting.
3. By Special Majority and Ratification by States

The fundamental matters where States have important power under the Constitution, in the
amendment of such matters the states are given important voice in its amendment. This is because
any unilateral amendment by the parliament may vitally affect the fundamental basis of the
constitution. Hence, the following Articles require in addition to special majority, ratification by
not less than half of the state legislatures.

a. Election of President (Art 54 &55)

b. Extent of the executive powers of the union and states (Art. 73, 162, 241 279A)
c. Articles dealing with judiciary, SC, HC in the states and Union Territories (Art 124-147,
214-231,241)
d. Distribution of legislative powers between the Centre and the State(Art245-255)
e. Goods and Service Tax Council (art 279A)
f. Any of the Lists of the VII Schedule
g. Representation of States in Parliament IV Schedule
h. Article 368 itself
PROCEDURE FOR AMENDMENT
A bill to amend the constitution maybe introduced in either house of the parliament. It must be
passed by each house by a majority of the total membership and by a majority of not less than 2/3
of the members present and voting. When the bill is passed by both the houses, it shall be present
to the President for his assent and once assented, the Constitution shall stand amended. But a bill
which needs ratification by states shall stand amended only once half of the states has ratified the
bill.
AMENDMENT OF FUNDAMENTAL RIGHTS

The question whether the fundamental rights can be amended under Art 368 came for the
consideration of SC in the case Shankari Prasad v. Union of India. In this case the validity of 1st
constitutional amendment was challenged. The amendment was challenged on the ground that it
purported to take away or abridge the rights conferred by Part III of the constitution and hence
void. It was argued that the “State” under art 12 included Parliament and the word “Law” in Art
13(2) therefore must include constitutional amendment The SC however rejected this argument
and held that the power to amend the constitution including FRs is contained in Art 368 and hence
the constitutional amendment is valid even if it abridges or takes away the FRs.

In Sajjan Singh v. State of Rajasthan, the validity of the 17th constitutional amendment was
challenged. The SC upheld the decision in Shankari Prasad’s case and held that the words
“amendment of the Constitution” means amendment of all the provisions of the Constitution.

In Golak Nath v. State of Punjab, the validity of the 17th amendment which inserted certain state
Acts in the 9th Schedule was challenged. The SC by a majority of 6:5 prospectively overruled its
earlier decision in Shankari Prasad’s and Sajjan Singh’s cases and held that the parliament had no
power from the date of this decision to amend part III of the constitution so as to take away or
abridge the fundamental rights.
24th Constitutional Amendment

In order to remove the difficulties created by the SC in Golak Nath’s case, the parliament enacted
the 24th amendment.