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PCS (J) Notes: Constitutional Law, Nature of Indian Constitution

 

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Nature of the Indian Constitution

In short, Nature of Indian Constitution

  • Lengthiest Written Constitution
  • Blend of rigidity and flexibility
  • Federal system (with Strong Centre)
  • Parliament sovereignty with Judicial Supremacy
  • Integrated and Independent judiciary
  • Single citizenship
  • Independent bodies (eg election commission)
  • Secular State
  • Three tier Government
  • Universal Adult Franchise
  • Includes ( fundamental rights, fundamental duties , Directives principles)

 

Nature can be interpreted in many different ways like the basic structure as interpreted by different rulings of Supreme Court is also a part of Indian Constitution

  • Judicial review
  • Rule of law
  • Republic democratic form of government
  • Parliamentary system
  • Supremacy of the Constitution
  • Separation of judiciary, legislature, executive
  • free and fair elections

 

NATURE OF INDIAN CONSITITUTION – RIGIDITY OR FLEXIBLITY

The amendment of some provisions can be done with simple majority (as simple as making a normal law), but some provisions need special majority like

  • Most of the provisions Indian Constitution can be amended by the help of simple majority of the Parliament in the manner of ordinary legislative process.
  • There are provision like Fundamental Rights, Directive Principles of State Policy etc. which can be amended with the help of special majority of the Parliament where a 2/3rd majority of the members of each House present and voting and a majority of the total membership of each House.
  • With the help of special majority of the Parliament and with the consent by half of the total states by simple majority provisions related to the federal structure can be amended.

NATURE OF INDIAN CONSTITUTION – FEDERAL OR UNILATERAL?

Indian Constitution is Federal in nature and Unitary in spirit.

By analyzing Indian Constitution, few points are highlighted

  • Indian Constitution created double Government – Central Government and State Government.
  • The Indian Constitution also provide for the distribution of power

Unitary Constitution is the Constitution where all the powers are concentrated under the one government that is generally the Central government and the States are subordinate to it.

Whereas, in Federal Constitution, there is the administration of power between the Central and the State, both are Independent as well as co-ordinate to each other.

Characteristics of Federal Constitution

  • Distribution of Powers between center and states

A federal Constitution elaborate the sphere of the Central and State Governments. Each government has to act within its own sphere and cannot obtrude upon the area of others.

This distribution of powers between Centre and State is matter of National importance and in which uniform policy is advantageous are given to the Centre and the matters which are of local importance are given to the States for legislation and control.

  • Supremacy of the Constitution

Under a federal system, Constitution is Supreme. All organs of the government have to work within the spheres delegated to them by the Constitution and they cannot obtrude upon the jurisdiction of other organs.

The judiciary has to elucidate the Constitution and has to see that there is no indiscretion of jurisdiction by different organs of the government in the spheres delegated to others. The controversy between different organs of the government are solved according to the provisions of the Constitution.

  • Written Constitution

A federal Constitution is definitely a written Constitution. Distribution of powers can be assemble between the Central and State governments only when there is a written Constitution. All organs of the government acquire their powers from the Constitution and have to function within the defined limits.

The validity of all legislative ratification is examine according to the provisions of the Constitution. It would be difficult to maintain the supremacy of the Constitution unless there is a written Constitution for the country with defined powers of governance to the States and the Centre. To base the powers of governance on the States and the Centre upon protocol, would be misuse and generate misunderstanding.

  • Rigidity of the Constitution

The method for amendment of the Constitution is usually rigid. A special procedure laid down by the Constitution can be only amended. In a rigid Constitution, the method of amendment is very complicated and difficult.

It does not mean that the Constitution should be legally inflexible. In simple it means that the power of amending the Constitution should not purely remain with the Centre or the State Governments.

  • Effective roles of the court

The courts under a federal Constitution have the final authority to elucidate the Constitution and maintain the Supremacy of the Constitution. They decide the controversy between the Central and State governments. Their decisions on inter-governmental controversy are final. Besides, the courts are the savior of fundamental rights of the citizens of the country.

Constitution of India owns all the important characteristics of a federal Constitution as mentioned above. Constitution of India is a written Constitution. There are division of powers between the Central and State governments.

 

Constitution of India is the supreme law of the country

The method for amending the provisions of the Constitution is the difficult task under Constitution of India. Supreme Court has been established to decide controversy between the Centre and the States.

Some jurists are of the opinion that the Constitution of India is truly federal. But in certain circumstance, the Centre obstructs in the State matters and thus places the States in subordinate positions. In following matters, Constitution of India contains abetments of the federal principles and makes it more unitary than federal.

  • Appointment of Governors

The governors of the States are appointed by the President. Whereas, governors are answerable to the President for his conduct.

  • Parliament’s power of Legislation in National Interest:

Article 249 authorize Parliament to legislate on State List when it is for national Interest.

  • Parliament’s power to construct New States:

Article 3 of the Constitution authorize Parliament to construct new States out of the existing States and to increase or decrease the area of any State and to alter the boundary or name of any State.

  • Emergency Provisions:

Under Constitution of India three types of emergency have been envisaged viz.,

  • emergency arising out of war,
  • or external aggression or armed rebellion,
  • Emergency due to failure of machinery in the States and financial emergency.

Due to proclamation of emergency under Article 352, the normal administration of powers between Centre and States undergoes an essential change. Parliament is permit to make laws with respect to any matter on State Lists.

Under Article 356, if the President is satisfied that the government of a State cannot be transferred on in accordance with the Constitution, he can discharge the State ministry and dissolve the State assembly and assume all the functions of the State.

Conclusion

According to the above situations, the federal character of the Constitution is altered. During emergency, the Constitution is transformed into unitary Constitution. After the Emergency over, the Constitution functions as a federal Constitution.

The framers of the Indian Constitution incorporated these provisions on practical considerations taking note of the unexpected problems of the country. Constitution of India is therefore, a combination of unitary and federal system with special provisions to safeguard the interests of the country.

 

Submitted by- Supriti Bhargawa

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