The word ‘Constitution’ is derived from the French word ‘Constitutro’ which means to establish. It also means “rules, regulations and orders”. It is a text or document containing the fundamental principles/rules to determine and regulate between the State/Government and the people.
According to Aristotle, constitution is the way of life, which the state has choosen for itself.
According to Dicey, constitution is the product of all those rules, which affect the sovereignty of a state.
According to Austin, constitution fixes the structure of Supreme Government.
CLASSIFICATION OF CONSTITUTIONS
Constitutions may be classified as follows:-
Written and Unwritten Constitutions- Constitution of a country may be written or unwritten. A written constitution is one, which is written down in a form of a single or several documents. The constitutions of most of the countries are written. For Example- U.S.A, Australia, Switzerland, India etc.
Whereas, an unwritten constitution is one, which is not embodied in a comprehensive document or documents. Generally, an unwritten constitution consists of a number of customs, traditions, usages, judicial precedents, conventions etc. The best example for unwritten constitution is the constitution of United Kingdom.
Unitary and Federal Constitutions- Unitary Constitution is one, which sets one Central Government and all the powers vested in it. The unit/provincial/State Governments act/operate as subordinates to the Central Government. For example- The Constitution of Great Britain. A Federal Constitution is one, which provides for the division/distribution of powers between the Union/Central and Unit/State Governments. For Example- American Constitution is the best example for federal constitution.
Flexible or Rigid Constitutions- A constitution is said to be ‘flexible’ if it provides for a simple amendment procedure for its amendment. It means a bill proposing an amendment can be passed in each house by a simple majority of the members present and voting and on receiving the assent of the President or the Governor, as the case may be, has the effect of amending the Constitution. It is one which can be changed by an ordinary process. If the constitutional law of a state can be framed, amended or repealed in the same way as the ordinary law, the constitution is flexible. It does not matter whether the constitution is written or unwritten. In such a constitution, there is no distinction between the constitution making authority and ordinary law-making authority.
A rigid constitution is one which requires a special, complex and more technical procedure for its amendment. It is definite and more stable. It enjoys higher status than the ordinary laws of the land.
SALIENT FEATURES OF INDIAN CONSTITUTION
Written Constitution- The Indian Constitution is in writing. The Framers of the Constitution i.e the Drafting Committee headed by B.R. Ambedkar as Chairman and other 8 members have taken all precautions and borrowed the provisions of the other constitutions of the world and completed the task in the mid 20th century and submitted it on 29th November, 1949 and it came into force from 26th January, 1950.
Lengthiest Constitution- Indian Constitution is the lengthiest and the most detailed of all the written constitutions in the world. At the time of passing, it originally constituted 395 Articles divided into 22 parts and 8 schedules. In view of changing needs, the Constitution has been amended from time to time by inserting and omitting certain provisions/articles. The latest amendment as on 01-01-2015 is the Constitution (99th Amendment) Act 2014. At present, there are near about 500 articles (although the last numbered article is 395) divided into 25 Parts and 12 Schedules.
Indian Constitution is lengthy for the following reasons:-
India to be a Federal State, elaborate provisions were made for Centre-State relations.
The territory of India comprises of various races, religions, communities and castes, adequate special provisions have been provided to safeguard the interests of the socially and economically backward and minority communities.
In order to achieve the ideals and goals enshrined in the constitution and to establish a welfare state, fundamental rights and directive principles of State Policy are provided for under Parts III and IV containing various provisions.
A Sovereign, Socialist, Secular, Democratic Republic- The preamble of the Constitution declares India to be a sovereign, secular, democratic republic. The word ‘Sovereignty’ means that the State has power to legislate on any subject in conformity with Constitutional Limitations. India is Sovereign. Its membership of the Commonwealth of Nations and of the United States Organisation does not restrict her sovereignty. The word sovereign emphasizes that India is fully independent and is no more dependent upon any outside authority. The words ‘socialist’ and ‘secular’ were inserted in the Preamble by the Constitution (42nd Amendment) Act, 1976. The word ‘Socialism’ is used in democratic and socialistic countries and has no definite meaning. In general, it means some form of ownership of the means of the production and distribution by the State. India has chosen its own brand of socialism through ‘mixed economy’. The term ‘Secularism’ or ‘Secular State’ means “a State, which has no religion of its own as recognized religion of the State.” The State will not propagate any religion and treats all religions equally. Every citizen in the country is absolutely free to profess any religion of his/her choice and also free to convert from one religion to another religion. The term ‘Democratic’ denotes a form of government, which secures power/authority from the will of the people. The voice of the Government is nothing but the choice of the people. The rulers of the Government are the elected representatives of the people and are responsible/accountable to the people.
The term ‘Republic’ signifies that there shall be an elected head of the State as the Chief Executive Head. As such, the President of India is the Chief Executive Head.
Quasi-Federal- Constitution of a country may be unitary or federal. In unitary constitution, powers are centralized in Central Government. Example-England. In Federal Constitution, the powers are distributed between Centre and States. Example-America. However, Indian Constitution satisfies both unitary and federal features. Indian Constitution is federal in structure and unitary in spirit. During peace time, it is federal, but in emergency period, it is unitary. Therefore, Indian Constitution is said to be ‘Quasi/Semi Federal’,
Parliamentary democracy and Cabinet form of Government- The significant feature of the Indian Constitution is the Parliamentary democracy and cabinet form of government. In Parliamentary democracy, the Government gets power/authority from the will of the people. In cabinet form of government, the President is the constitutional head and the real executive power is vested in the Council of Ministers headed by the Prime Minister.
Fundamental Rights- Such rights are inherent for the survival of human life. They are very essential and without which a human being cannot survive. Part III of the Constitution containing Articles 12 to 35, provides for fundamental rights. Fundamental Rights are also known as basic rights or justiciable rights. If the fundamental right of an individual is abridged by an executive order or law passed by a legislature, the aggrieved individual can challenge such executive or legislative action in High Court under Article 226 or Supreme Court under Article 32 of the Indian Constitution.
NATURE OF INDIAN CONSTITUTION
Distribution of powers between the Center and State- The term ‘Federalism’ means distribution of powers of the State among different coordinate bodies (controlled by the constitution). Both the Central and State Governments are independent of each other in their own spheres. The basis of such distribution is in view of national importance.
Constitutionalism and Supremacy of the Constitution- In a Federal State, Constitution is the supreme law of the land. The Governmental machinery is in accordance with the provisions of the Constitution. Any law passed by the Parliament or State Legislature or subordinate body must be in accordance with the provisions of the constitution. Otherwise it is declared to be void on the ground that it is unconstitutional.
A Written Constitution- To maintain the supremacy and to achieve the ideals and goals enshrined, the constitution must be in writing. A written constitution is one, which is written down in the form of document. Example- American Constitution, Australian Constitution etc. The Indian Constitution is a written document containing 395 Articles divided into 22 parts and 8 schedules at the time of its passing in 1950. In view of subsequent amendments i.e. after the passing of the Constitution (99th Amendment) Act, 2014, there are about 500 Articles divided into 22 Parts and 12 Schedules.
Rigidity- The Constitution of a country to be supreme, it must be rigid i.e. it should be very difficult to amend the provisions of the Constitution. A rigid Constitution is one, which requires a special, complex and more technical procedure for its amendment. Art. 368 of the Constitution confers on the Parliament, right to amend the provisions of the Constitution.
The Constitution of any country begins with the Preamble. The term ‘Preamble’ is a latin word, which means ‘to go before’. It is a preface or preliminary statement in writing. It contains the ideals and goals, which the legislature is intending to achieve. It forms the basis to understand the various provisions, objectives and aspirations intending to be achieved. The Supreme Court in Berubari Case, (AIR 1960 SC 845) said that ‘Preamble is a key to open the minds of constitution makers.’
Preamble confers on the Constitution no power, but directs the aims and objectives, which the Constitution envisages as stated below:
It contains the enacting clause, which brings the Constitution into force.
It declares the type of government and polity, which is sought to be established in the country.
It declares the rights and freedoms, which the people of India to have secure.
“We the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all 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.
Justice-social, economic and political
‘Justice’ is the harmonious reconcilement of individual conduct with the general welfare of society.” An act or conduct of a person is said to be ‘just’ if it promotes the general well being of the community. The expression ‘social justice’ means “abolition/removal of all sorts of inequalities, which may result from the inequalities of wealth, opportunity, status, race, religion, caste, title and the like.” All are treated equally in the society irrespective of their social status.
The expression ‘economic justice’ means ‘justice from the stand point of economic force.’ It means ‘equal pay for equal work, that every person should get his just dues for his labour irrespective of his caste, sex or social status’.
The expression ‘political justice’ means ‘the absence of any unreasonable or arbitrary distinction among men in political matters’. Indian Constitution has adopted the system of universal adult suffrage, which ensures every citizen without any discrimination on the ground of caste, race, sex, religion, descent, place of birth, the right to vote and to contest elections or to hold offices under the State.’
Social justice and equality are complementary to each other, so that both can maintain their own vitality. The rule of law is thus a patent instrument of social justice to bring about equality.
Liberty- of thought, expression, belief, faith and worship
The word ‘Liberty’ is used in two senses i.e. negative and positive senses. In the negative sense, it means ‘the absence of all undue or arbitrary interference with individual’s action on the part of the State.’ In positive sense, ‘it comprises of liberties or rights, which are considered essential for an individual to attain his potentialities and for the perfection of the national life.’
Equality- of status and of opportunity
One of the most important objectives of the preamble is Equality of Status and Opportunity, which can be secured to the people by abolishing all distinctions or discriminations by the State, between citizen and citizen on the ground of religion, race, caste, sex or place of birth and by throwing open ‘public places’ to all citizens, by abolishing untouchability and titles, by securing equality of opportunity in the matters relating to employment or appointment to any office under the State.’
The term ‘Fraternity’ means ‘a spirit of brotherhood, a feeling that all people are children of the same soil, the mother-land.’ According to Dr. B.R. Ambedkar, fraternity implies ‘a sense of common brotherhood of all Indians.’ The Indian Constitution makes no provision, which reflects fraternity as an object. However, there are certain provisions in the Constitution such as common citizenship, right to move freely, to reside and settle in any part of the territory of India, to practice any profession or to carry on any occupation, trade or business which generates the spirit of brotherhood.
THE ROLE OF PREAMBLE IN THE INTERPRETATION OF THE CONSTITUTION
There are three main organs in the Government of any State namely, the Legislature, Executive and Judiciary. The Legislature makes laws; the Executive is to approve/implement the laws and the Judiciary interprets the laws.
WHETHER PREAMBLE IS A PART OF THE CONSTITUTION
This question mainly draws the attention of the Parliament as to its amending power of the Constitution under Article 368. If the preamble is regarded as a part of the Constitution, the Parliament can amend the preamble also. Otherwise the amending power of the Parliament does not extend to the Preamble.
In Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)- it was observed that while the Preamble was the key to the mind of the Constitution makers, it could not be regarded as part of the Constitution.
In S.R. Bommai v. Union of India (AIR 1994 SC 1918), Hon’ble K. Ramaswamy J. ‘The Preamble of the Constitution is an integral part of the Constitution, democratic form of government, federal structure, integrity and unity of nation, secularism, socialism, social justice and judicial review are basic features of Constitution.
AUTHORED BY: SANAH SETHI
AMITY LAW SCHOOL (L.L.B 3 YEARS)