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

Very comprehensive, elaborate and detailed document.
Presently consists of a Preamble, about 470 Articles (divided into 25 Parts) and 12 Schedules

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.

Blend of Rigidity and Flexibility
Federal System with Unitary Bias
Parliamentary Form of Govt--Based on principle of co-op & co-ord b/w legislative & executive organs
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

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.

Bold experiment and highly remarkable
Makes democracy broad-based, enhances the self-respect & prestige of the common people
Upholds the principle of equality

CAG, ECI, UPSC-- Envisaged by Constitution as the "Bulkworks of Indian democratic system"

Criticism of Constitution

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”

Ivor Jennings-- “the Constitution derives directly from GoI Act of 1935 from which, in fact, many of its provisions are copied almost textually”.

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”

Commentaries

"Constitution is not a mere lawyer’s document; it is a vehicle of life and its spirit is always the spirit of age”.
However a good constitution may be, if those who are implementing it are not good, it will prove to be bad'
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

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.
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.
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

Class Notes 4 You