Salient features of Indian Constitution

Introduction

• Indian Constitution is unique in its contents and spirit.
• Normative and legal Framework through which the world' largest & one of the most contentious democracy was brought into existence .
• A charter through which an ancient civilisation was set on the road of modernity  

Keywords

• Cosmopolitan constitution-- Reflects universal values like liberty, equality and fraternity .
• The Transformative Constitution-- UAF, FRs, Subjects of colonial rule transformed into the citizens
• Constitutional Morality
• Not a static rulebook but a living document.
• It is the “religion of all the religions” for Indians.

Features

1. Lengthiest Written Constitution
• Very comprehensive, elaborate and detailed document.
• Presently consists of a Preamble, about 470 Articles (divided into 25 Parts) and 12 Schedules
2. Drawn From Various Sources
• Ambedkar-- Constitution of India has been framed after ‘ransacking all the known Constitutions of the World'
• Structural part is largely derived from GoI Act of 1935 (Federal Scheme, Judiciary, Governors, Emergency Powers, PSC, Adm details)
• Philosophical part (FRs & DPSPs)-- Derived from American & Irish Constitutions
• Political part (Parl system)-- From British Constitution
• Though drawn from multiple sources, yet the constitution endured & became a part of India's national identity. 
3. Blend of Rigidity and Flexibility
4. Federal System with Unitary Bias
5. Parliamentary Form of Govt--Based on principle of co-op & co-ord b/w legislative & executive organs
6. Synthesis of Parliamentary Sovereignty & Judicial Supremacy
• Scope of judicial review power is narrower than in USA-- Bcz American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in Indian Constitution
7. Integrated and Independent Judiciary
8. Fundamental Rights-- To promote the idea of political democracy.
9. DPSPs-- To est S-E Democracy and welfare state in India.
10. Fundamental Duties
11. A Secular State
• Western concept (Negative) -- Complete separation b/w religion (church) & state (politics).
• Indian (Positive Secularism)-- Giving equal respect to all religions or protecting all religions equally. 
12. Universal Adult Franchise--
• Bold experiment and highly remarkable
• Makes democracy broad-based, enhances the self-respect & prestige of the common people
• Upholds the principle of equality
13. Independent Bodies-
• CAG, ECI, UPSC-- Envisaged by Constitution as the "Bulkworks of Indian democratic system"

Criticism of Constitution

1. A Borrowed Constitution / A ‘Bag of borrowings’
• However, this criticism is unfair & illogical-- As framers made necessary modifications in the features borrowed for their suitability to Indian conditions
• Ambedkar--The charge of producing a blind copy of Constitutions of other countries is based, on an inadequate study of the Constitution”
2. A Carbon Copy of GoI Act 1935
• Ivor Jennings-- “the Constitution derives directly from GoI Act of 1935 from which, in fact, many of its provisions are copied almost textually”.
3. Un-Indian or Anti-Indian
• Bcz it does not reflect the political traditions & the spirit of India.
• profoundly shaped by English common law & deep imprints of GoI Act 1935.
• K. Hanumanthaiya--“We wanted the music of Veena or Sitar, but here we have the music of an English band”
• Lokanath Misra--Criticized Constitution as a “slavish imitation of west, much more - a slavish surrender to the west”
4. An Un-Gandhian Constitution
5. Elephantine Size-- Too bulky and too detailed
6. Lawyer's Paradise (Ivor Jennings)-- Too legalistic and very complicated.

Commentaries

• Ambedkar—
1. "Constitution is not a mere lawyer’s document; it is a vehicle of life and its spirit is always the spirit of age”.
2. However a good constitution may be, if those who are implementing it are not good, it will prove to be bad'
3. Social justice is not merely a welfare policy framework. Rather it is a dynamic tool to generate revolutionary political conciousness among socially marginalised groups
• Pratap Bhanu Mehta— Indian Constitution is a revolutionary document— basis for transformation of India’s Traditional society into a modern society.
• Jus R.F Nariman in Sabrimala case—In India’s tryst with destiny, we have wedded to the RoL as laid down the “holy book” i.e, the constitution
• 
  

UCC

• Jose Paulo Coutinho case (2019)— SC found Goa a “shining ex of an Indian State which has a UCC”.
• Pannalal Bansilal Pitti case—UCC although is highly desira­ble but its enactment in a pluralist socie­ty in “one go” may be counterproductive to unity & integrity of the nation.

Doctrine of “Essential practices”

• Can be traced to Shirur Mutt case (1954)—what constitutes the essential part of a religion is primarily to be ascertained with reference to doctrines of that religion itself
• Whether a particular ritual is intrgral to a particular religion--if this ritual is not followed, will that religion will survive / loose its existence
• W.r.t Beards by sikhs in indian army-- regulated by Defence rules
• 5Ks are integral to sikhism (kesh, kangha, kara, kachera, and kirpan)
• but keeping beard is not integral for muslims / Islam
• In 1983, SC disallowed ‘Tandava’ holding that it is not an essential religious practice among Ananda Margis sect.
• In Sabarimala case (2018)—Bar on entry of women is not an essential part of religion

Criticism of this doctrine

1. It was never intended to be a test to find out if a particular practice is essential to religion, but was made to distinguish a matter of religion from a matter other than religion.
2. Allow courts to go deeply into scriptures & tenets of a religion to find out if practice is essential. This is seen as a theological or ecclesiastical exercise, which courts are forced to wade into.
3. A more reasonable approach will be to apply the test of constitutional morality—Principles of equality, dignity & civil rights to a particular practice may be better to decide the constitutionality of a practice than a theological enquiry.

Tribunals

• Suggested by 14th LCI (1958) And also by Swaran singh committee