Indian Constitution : Basic Concepts & Introduction of Constitution

Introduction

A Constitution is a document of people’s faith and aspirations possessing a special legal sanctity. A Constitution is the fundamental law of a country. It is the rulebook of a nation, which regulates the society and its laws. There are various forms of government prevalent across the world. It is the philosophy embodied in a nation’s constitution which determines the kind of government present there.

Functions of the Constitution

A Constitution, whether it is written or unwritten, always has several functions, some of which are as follows:

a) Expression of Ideology: It reflects the ideology and philosophy of a nation state.

b) Expression of Basic Law: A Constitution presents basic laws, which can usually be modified or replaced through a process of amendment. Generally, there are special laws too, which focus upon the rights of the citizens; for instance, rights concerning freedom of speech, religion, assembly, press etc.

c) Organizational framework: It provides an organizational framework for the government. It defines the functions of legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc.

d) Levels of Government: A Constitution generally explains the levels of different organs of the Government. Whether it is federal, confederation or unitary, is usually described by the Constitution. It may also delineate the powers of national and provincial governments.

e) Provisions for amendment: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. So, it should contain a set of directions for its own modifications. Inherent capacity to change according to changing times and needs help any system to survive and improve.

Example: The Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the government of the day.

Understanding the Constitutionalism

The Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the government of the day.

A limited government is a political system in which legalized governmental power is restricted by law, usually the constitution. Countries with limited governments have laws about what government can and can’t do. Any country that has a democratic governmental system is an example of one that is a limited government. Many countries throughout the world have a limited government, and a few examples are United States, England, Australia, Japan etc. In India, it is constitutionallylimited government, bound to specific principles and actions by the constitution.

According to K C Wheare and W G Andrews, Constitutionalism implies:

• Division of powers
• Acceptance of plurality of interests in society
• No authoritative or dictatorial leadership
• Minimum constraints on individual freedom

According to Carl J Friedrich, the division of powers is the most important basis of Constitutionalism. Constitutionalism may exist in a monarchy or republic, aristocracy or democracy, if there is division of power.

Constitutionalism in India

Constitutionalism in India is an amalgamation of the following underlying principles:

• Written Constitution,
• Responsible Government,
• Parliamentary Democracy,
• Rule of Law,
• Fundamental Rights,
• Separation of Powers and Checks and Balances,
• Flexibility of Constitution and its Basic Structure,
• A Federal Form of Government,
• Independent Judiciary and Judicial Review etc.

Characteristics of federalism

1. Two or more levels (or tiers) of government-generally federal (central) and provincial (state) govt.

2. Each tire has own JURISDICTION in specific matters of legislation, taxation and administration.

3. The existence and authority of each tier of government is constitutionally guaranteed.

4. The fundamental provisions of the constitution cannot be unilaterally changed by one level of government. Such changes require the consent of both the levels of government.

5. Courts have the power to interpret the constitution and the powers of different levels of government.

6. Sources of revenue for each level of government are clearly specified to ensure its financial autonomy.

7. The federal system has dual objectives:

• To safeguard and promote the unity of the country
• Accommodate regional diversity

Key doctrines in Indian Polity

1. Separation of Power:

• The separation of powers is an approach to govern a state. Under it, a state's government is divided into branches, each with separate, independent powers and responsibilities so that the powers of one branch are not in conflict with those of the other branches
• Theoretically, we may say that the doctrine of SoP is there in India, but it is only between the Executive and the Judiciary.
• The PM is a part of the Union Executive. yet it is the PM and the council of ministers who are the real executive because the President has to act on the aid and advice of the Council of Ministers.
• Thus, CoM work in the capacity of both the legislative and executive capacities, which goes against the doctrine of SoP.

2. Constitutional Provisions:

• Article 50-> Judiciary and Executive should be separate
• Articles 121, 122-> judicial conduct of SC and HCjudges can not bediscussed in Parliament and State legislatures
• Article 361-> President and Governors are not answerable to any court for the exercise and performance of their official duties.

3. Judicial Pronouncements:

• Kesavananda Bharati case: SoP is an integral part of the basic structure of the Constitution
• Indira Gandhi vs Raj Narain Case 1975: SC observed that SoP was limited in India.
• The SC rejected the NJAC Bill 2014 as it threatened the independence of the Judiciary.

Doctrine of Checks and Balances

• Checks and balances is a principle of government under which separate branches are empowered to prevent actíons by other branches and are induced to share power.
• Checks and balances are applied primarily in constitutional governments.
• They are of fundamental importance in tripartite governments, such as that of the United States. which separate powers among legislative, executive, and judicial branches.

ln Indian Context:

• Checks on Judiciary: The judges of SC and HC are appointed bythe executive, but they may be removed only ifthey are impeached by the Parliament
• Checks on Executive: The executive is responsible to the Legislature in its functioning.
• Checks by Judiciary on Legislature and Executive: through the tool of Judicial review and using the doctrine of basic structure.

Doctrine of Basic Structure

• It is a judicial Innovation that was propounded in the Kesavananda Bharati case on the 24th of April 1973.
• Through this Judiciary put a limitation on the amending powers of parliament so that the basic structure of the constitution can't be amended under Art 368.
• Court held that no part of the constitution was beyond parliament's amending power but the basic structure of the constitution can't be amended even with a constitutionally amendment act .
• The power to amend is not a power to destroy the constitution.
• The court didn't defìne the basic structure but only listed a few principles as being its part Several such principles have been propounded by the court from time to time. for example, SR Sommai- Secularism 1994, Judicial independence and judicial review in L Chandra Kumar case.

Majorities in Indian Parliament

Majority - It is a functional instrument used in Parliament to carry out several businesses like amendment to the Constitution appointment & removal of officials and working of Parliament.

Types of Majorities in Indian Parliament

Although the Constitution of India does not provide an explicit classification for the kinds of majorities needed for passing various kinds of bills, a careful interpretation of the Constitution provides four major types of majorities.

They are as follows:

1. Simple
2. Absolute
3. Effective
4. Special

1. Simple Majority

• This refers to a majority of more than 50% of the members present and voting in the House also known as Functional or Working majority. This is the most commonly used type of majority.
• When the law does not specify the kind of majority needed, a simple majority is used for passing bills or motions.
• Ordinary bills require only a simple majority. For example, in the Lok Sabha, out of the total strength of 545, suppose 45 were absent and 100 abstained from voting. This means, only 400 members were present and voting. In this case, the simple majority needed is 201 (50% + 1).

Instances where a simple majority is needed:

• To pass money bill/financial/ordinary bills
• To pass Adjournment Motion/Non-Confidence Motion/Censure Motion/Confidence Motion 
• To declare a financial emergency
• To declare President’s Rule (state emergency)
• To elect the Speaker and Deputy Speaker of the Lok Sabha
• Constitution Amendment Bill under Article 368 which needs to be ratified by the states needs only a simple majority at the State Legislatures; etc.

2. Absolute Majority

• This refers to a majority of more than 50% of the House’s total membership. This means that in the Lok Sabha, the absolute majority is 273. (50% more than 545, the total membership of the Lok Sabha).

3. Effective Majority

• This refers to a majority of more than 50% of the effective strength of the House. For example, in the Lok Sabha, out of the total strength of 545, suppose 5 are vacant seats. This means, the effective strength of the House is (545 – 5)  = 540. In this case, the effective majority is 270.
• In the Constitution, an effective majority is mentioned as “all the then members”.

Instances where an effective majority is needed:

• Removal of the Deputy Chairman in the Rajya Sabha (Article 67(b)).
• Removal of the Deputy Speaker of the Lok Sabha and the State Legislatures.

4. Special Majority

Any majority other than simple, absolute and effective are called Special Majorities. There are four types of special majorities. They are as follows:

1. Special Majority according to Article 249
2. Special Majority according to Article 368
3. Special Majority according to Article 368 + 50 percent state ratification by a simple majority
4. Special Majority according to Article 61

Special Majority according to Article 249

• This refers to a majority of 2/3rd members present and voting. This is used to pass a Rajya Sabha resolution to empower the Parliament to make laws in the State List.

Special Majority according to Article 368

• This refers to a majority of 2/3rd members present and voting supported by over 50% of the total strength of the House. This is chiefly used for most of the Constitution Amendment Bills.

Instances where this type of majority is used:

• Passing a constitutional amendment bill which does not affect federalism.
• Removing judges of the Supreme Court or High Court.
• Removing the Comptroller and Auditor General of India (CAG) or the Chief Election Commissioner (CEC).
• National emergency
• Resolution by the State Legislature for the abolition or creation of the Legislative Council.

Special Majority according to Article 368 + 50 percent state ratification by a simple majority

• This type of majority is needed when a constitutional amendment tries to change the federal structure.  E.g. The bill that introduced the National Judicial Appointments Commission. It needed the support of at least 15 state legislatures out of the 29 states.

Special Majority according to Article 61

• This refers to a majority of 2/3rd of the total strength of the House. This is used in the case of impeachment of the President of India.

Political theories

Liberty - It is the absence of constraints and facilitation to the ability of people to choose , believe and act on their potential. It's external construct. It's personal freedom that is granted to people by external authority. Example - liberty of thought expression , belief , faith , expression and worship in Indian constitution.

Liberty are of two type

1. Negative liberty - Also know as liberty from law . It's narrow interpretation. It focuses on absence of constraints
2. Positive liberty - it's known as liberty by law. It has wider interpretation. It focuses on facilitation to environment developing full potential of an individual.

Freedom - It is the absence of constraints and facilitation to the ability of people to freely express themselves and develop their potential. It is the internal construct where one individual decides his own action. It is the capability of an individual to make decision without external control.

Republic - Absence of privilege class and political sovereignty with people.

Equality - Absence of special privileges to any section of society and provision of adequate opportunity for all individuals without any discrimination.

Sovereign - freedom of a country to conduct its own affairs both internally and externally

Democratic Socialism - Faith in public and private sectors coexistence.

Secular - Independence of a state action from religious influence. Indian secularism is a positive secularism where all religion enjoys equal status

Democratic - possession of supreme power by people

Parliament democracy - arrangement of government where executive is responsible to the legislature for its policies and actions.

Feminist - Feminists are those men and women who believe that many of the inequalities we see in society between men and women are neither natural nor necessary and can be altered so that both women and men can lead free and equal lives.

Social justice - Social justice is a political and philosophical theory which asserts that there are dimensions to the concept of justice beyond those embodied in the principles of civil or criminal law, economic supply and demand, or traditional moral frameworks.

Rights - These are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory.

---> Next Article ( 2. Historical Background of Indian Constitution)