Indian Constitution: Fundamental

Characteristics
S M Masum billah
billah002@gmail.com
 Introduction
• Pandit Jawaharlal Nehru in the first Constituent
Assembly in free India said:
– Long years ago we made a tryst with destiny and now the
time comes when we shall redeem our pledge, not wholly
or full measure, but very substantially. A the stroke of the
midnight hour, when the world sleeps, India will awaken to
life and freedom. A moment comes, which comes but
rarely in history, we step out from the old to the new, when
an age ends, and when the soul of a nation long suppressed,
finds utterance. It is fitting that at this solemn moment we
take the pledge of dedication to the service of India and her
people and to still the larger cause of humanity.
 Introduction
• A constitution is an ever growing thing and is
perpetually continuous as it embodies the spirit
of a nation. It enriched at present by the past
influences and makes the future richer than the
present.
• Indian Constitution is an ample example of
this connotation.
 Introduction
• Adopted in 1950, came into effect on January
26, 1950.
• Biggest Constitution of the world (395
Articles)
• Founding Father: Dr. B R Ambedkar
 Characteristics of Indian Constitution
• Shellat & Grover JJ. (in Keshvananda Bharati v. State of
Kerala 1973):
– Our constitution is unique , apart from being the longest in the world. It
is meant for the second largest population with diverse people speaking
different languages and professing various religions. It is chiselled and
shaped by great political leaders and legal luminaries, most of whom
had taken an active part in the struggle for freedom from the British
yoke and who knew what domination of a foreign rule meant in the
way of deprivation of basic freedoms and from the point of view of
exploitation of the millions of Indians. The constitution is an organic
document which must grow and it must take stock of the vast socio-
economic problems, particularly, of improving the lot of the common
man consistent with his dignity and the unity of the nation.
• Hegde and Mukherjea JJ. Stated:
– Our constitution is not a mere political document.
It is essentially a political document. It is based on
social philosophy like every religion has two main
features, namely, basic and circumstantial. The
former remains constant and the latter is subject to
change.
 PREAMBLE
• WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
• JUSTICE, social, economic and political;
• LIBERTY of thought, expression, belief, faith and worship;
• EQUALITY of status and of opportunity;
• and to promote among them all
• FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation;
• IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
• Deep deliberation marked by precision
• An epitome of broad features of the constitution.
• Part of the constitution and a guide to interpretation of the
constitution.
• Very soul of the constitution—eternal and untouchable.
• Declaration of faith and belief from which we should not
depart in our national life.
• Basic structure of the constitution.
• Justice Ramaswamy: “ The preamble of the Constitution, is an
integral part of the Constitution. Democratic form of
government, federal structure, unity and integrity of the
nation, secularism, social justice and judicial review are basic
features of the constitution.”
 A Welfare State
• Justice, Liberty, Equality, Fraternity
• Attainment of Happiness and Good for All
• Equality and Non-discrimination
• No Exploitation
• Spirit of brotherhood
• No untouchability
• Above all social service of the state
 Socialist Republic
• 42nd Amendment
• Bridge the gap between rich and the poor.
• ‘Socialism’ being the synthesis between public
and private ownership.
 Single Citizenship
• Single citizenship—No dual citizenship----
One for province and another for whole India.
• Some domicile rule is there in different states
which differs with each other.
 Secularism
• Religious freedom and tolerance and respect for ideas
of rationalism, materialism, humanism.
• Encyclopedia of Social Sciences: An attempt to
establish an autonomous sphere of knowledge purged
of supernatural presuppositions.
• Encyclopedia Britannica: Utilitarian ethic designed
for physical, spiritual and moral improvement of
mankind which neither affirms nor denies the theistic
premise of religion.
 Secularism
• Donald Eugene Smith: The secular state is a state which
gives individual and corporate freedom of religion, is not
constitutionally connected to a particular religion, nor does it
seek either to promote or interfere with religion.
• M H Beg in Ziauddin Burahmmuddin Bukhari v. Brijjmohan
Ramdass Mehra and Bros. (1975 SCR 281): The secular state,
rising above all differences of religion, attempts to secure the
good of all its citizens irrespective of their religious beliefs
and practices. It is neutral or impartial in extending its benefits
to citizens of all castes and creeds.
• Anything that is pernicious and exploitative cannot be
allowed to remain outside the control of law simply
because it is paraded under the garb of religion.
• Keshavanandi Bharati Case and Babri Mosque Case:
Secularism as the basic structure of the constitution.
• In Ayodha Case (1995 SC 605): The concept of
secularism is one facet of right to equality woven as
the central golden thread in the fabric depicting the
pattern of the scheme in our constitution.
• Dr. Radhakrishnan, The ex-President of India in
Recovery of Faith at 184:
– “When India is said to be a secular state it does not mean
that we reject the reality of an unseen spirit or the relevance
of religion in life or that we exalt irreligion. It does not
mean that secularism itself becomes a positive religion or
the state assumes divine prerogatives…we hold that not
one religion should be given preferential status…This view
of religious impartiality or comprehension or forbearance,
has a prophetic role to play within the national and
international life”.
 Secularism in BD Const.
• Basic 4 principles: Secularism is one.
• Article 12 of the original Constitution that says: The
principle of secularism shall be realized by the
elimination of - (a) communalism in all its forms; (b)
the granting by the State of political status in favour
of any religion; (c) the abuse of religion for political
purposes; (d) any discrimination against, or
prosecution of persons practicing a particular
religion.
• 5th Amendment Case has restored this principle.
• If Secularism Collapses as a casualty of
communalism, humamism has no hope of
survival as a basic creed of a nation---Per
Justice V R Krishna Iyer.
• In essence: Equal freedom to all religious
beliefs.
 Election
• The entire scheme of the constitution is such
that it ensures the sovereignty and integrity of
the country as a Republic and the democratic
way of life by parliamentary institutions based
on free and fair elections.
 Adult Suffrage
• Adult Franchise –universal.
• Basic of election.
• No discrimination.
 Federal Form of Government
• From the history adopted the strong central
government.
• Some area are conferred on Province.
• Parliament can enact laws to control.
 Parliamentary form of Government
• Bicameral Legislature.
• The “Rajjya Shava” and The “Loko Shava”.
• President is the part of the parliament but
doesn’t sit.
 Flexibility
• Flexible in nature.
• Three ways:
– Union parliament by a simple majority.
– Ratified by half of the state legislatures and by two
thirds majority of either house of the parliament.
– Two-thirds majority—present and voting.
• Mathew J. : The constitution is a framework of great
governmental powers to be exercise for great public
ends in the future, is not a pale intellectual concept
but a dynamic idea which must dominate at any
consideration of the width of the amending power…
A constitution is not an end in itself, rather a means
of ordering the life of a nation. The generation of
yesterday might not know the needs of today, and if
‘yesterday is not to paralyze today’ , it seems best to
permit each generation to take care of itself.
 Independent Judiciary
• One hierarchical.
• Independent in terms of jurisdiction,
appointment procedure, security of tenure,
privileges etc.
 Judicial Review

• SC can declare any law unconstitutional if

inconsistent with the constitution.
 Fundamental Rights and Duties
• FR in Part III (Article 12-35).
• FD in Part IV A ( Article 51 A)
 Directive Principles of State Policy
• The purpose of the directive principles is to fix
certain social and economic goals for
immediate attainment by bringing about a non-
violent social revolution.
• Fulfill basic needs of the common man.
• Make people free from poverty, illiteracy and
other social menaces.
 FR and DPSP
• DPSP prescribes the goal to be attained and
FR prescribes how those goals are to be
achieved.
• They are the conscience of the constitution.
• Purpose is to make egalitarian society and
ensure liberty for all.
• DPSP laying down the path of a countries progress
towards the allied objectives and aims stated in the
preamble, FR is the limits of the path, like the banks
of flowing river, which would be mended by
displacements, replacements or curtailments or
enlargements of any part according to the needs of
those who had to use the path. ( Per Beg J. in
Keshavananda Bharati v. State of Kerala 1973 4 SCC
225)
• Chandrachud, CJ in Minerva Mills Case (1980 SCC
625) observed:
– The significance of the perception that Parts III and IV
together constitutes the core of commitment to social
revolution and they together are the conscience of the
constitution ……..two wheels of a chariot , one no less
important than the other. You snap one and the other would
lose its efficacy. They are like a twin formula for achieving
the social revolution which was the ideals of the visionary
founders of the constitution.
• FR conferred on individual citizens is the soul
of the constitution and the DPSP , which are
meant for achieving the welfare of the society
in general, it body”
– Indian SC in TG Srinivas Murthy v. BEML (1982)
I ILJ 268