In simple words, Constitution refers to a set of rules regulating the governance of a state and it has legal force. The Indian Constitution was brought into force on January26, 1950. The doctrine of basic structure deals with whether the Parliament has the power to amend the basic structure of the Constitution.
The following are the basic structure of the Constitution:
Supremacy of the Constitution:
Constitution is the supreme law of the land. All the organs shall function according to the procedures mentioned in the Constitution and shall obey the limitations mentioned by the Constitution.
Sovereign, Socialist, Secular, Democratic, Republic
The Preamble of the Indian Constitution aims at the establishment of a sovereign, socialist[i], secular[ii], democratic, republic.
The word ‘sovereign’ means supreme. It shows independence from outside authorities. India has both internal and external sovereignty. Membership in United Nations Organisations does not in any way affect her sovereignty.
In general, socialist refers to the ownership in means of production. The Welfare state actively participates in the economic and commercial activities of the citizens. It tries to provide social justice by not letting the means of production to accumulate in the hands of few. It tries to eliminate discrimination from the society. The Directive Principles of State Policy has come up to fulfil the socialist goals of the Constitution.
The word ‘secular’ implies that there is no specific religion of the state. People are free to practise any religion. All the religions shall be respected.
Democratic Government is a people’s Government. The citizens elect the Administrator they wish to be governed by.
In a Republic state, any hereditary procedure shall not be followed and the ruler shall be elected by free and fair elections.
Parliamentary Form of Government
India has a Parliamentary form of Government.
Features– In a Parliamentary form of Government, The President is the Constitutional head of the State. The Prime Minister is the Executive head of the State. The Council of Ministers works under the Prime Minister and are collectively responsible to the Lok Sabha. The members of Lok Sabha are elected by the citizens for a period of 5years. Similar procedure is adopted by the states. This Government is therefore, called a responsible Government[iii].
Flexible and Rigid:
Some of the provisions of the Indian Constitution are rigid and some are flexible. The provisions which require special amendment procedure are rigid and which require ordinary legislative process is flexible. In general, written Constitutions are rigid in nature but Indian Constitution is a beautiful blend of rigidity and flexibility. Article 368 of the Indian Constitution mentions three ways of amendment. They are:
Amendment by Simple Majority
Provisions like Citizenship, Abolition or Creation of Legislative Councils in States, Creation of Local Legislatures, Quorum of the Parliament, Rules of procedure in the Parliament, Fifth Schedule and Sixth Schedule can be amended by Simple Majority.
Amendment by Special Majority
The Articles which require amendment by special majority shall be effected by a majority of the total members of each House of the Parliament and by majority of not less than 2/3 of the members of that House who are present and are voting. The impeachment of the President under Article 61, Removal of Supreme Court and High Court judges come under this category.
Amendment by Special Majority and Ratification by States
Some Articles require Amendment by special majority as well as ratification by not less than ½ of the State Legislatures. Such provisions are Election of President, Extent of Executive powers of the Union and States, Articles dealing with Judiciary, Distribution of powers between the Centre and the State, any of the lists in the seventh schedule, Representation of the states in the Parliament and Article 368 itself.
Fundamental Rights:
Fundamental Rights have been mentioned in Part III of the Constitution. Fundamental Rights protect people and act as a limitation to the powers of the Government officials. The State cannot take away these rights except in case of emergencies. There are certain reasonable restrictions on these rights.
Writs:
In case of violation of these rights protection can be granted by the Supreme Court under Article 32 which consists of Writs like Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
- The word Habeas Corpus literally means ‘you have the body’. This Writ is in the form of summon to produce a body in the Court.
- Writ of Mandamus is a command to an inferior Court or person to perform a public duty.
- Writ of Certiorari a Higher Court reviews a case tried by a Lower Court.
- Writ of Prohibition forbids a particular act by law.
- Quo Warranto requires a person to show the warrant by which an office is claimed.
Directive Principles of State Policy:
Part IV of the Indian Constitution talks about Directive Principles of State Policy. These principles are not enforceable in the Court
Necessity – These principles cannot be considered useless just because it lacks enforceability. It strives to promote social and economic justice in the state. It acts as guidelines for effective governance.
Blend of Federal and Unitary features:
The Indian Constitution is both Federal and Unitary at the same time.
Federal features of the Indian Constitution:
Division of powers
The Constitution provides division of powers between the Centre and the State. Two tiers of Government have been provided. The Union Government has the power to legislate upon the subjects mentioned in the Union list and the State Government has the power to legislate upon the subjects mentioned in the State list.
Written Constitution
A Written Constitution keeps the power of the Centre and the State divided and the chances of conflict is becomes less.
The Constitution is the supreme law of the land and the State is administered by its provisions.
Independent Judiciary – There is division of power between the Executive, Legislative and Judiciary. Effort has been made to establish an independent and impartial Judiciary.
Bicameral Legislature – A Bicameral legislature also contributes to the federal features. There are 2 Houses in the Parliament that is the Lok Sabha and the Rajya Sabha.
Unitary features of the Indian Constitution:
Presence of a Strong Centre – Majority of the powers has been vested in the Centre in order to make it strong. The Union list contains more subjects as compared to the State list, the Union has higher authority over the Concurrent List and the residuary powers also rests in the hand of the Union.
Indestructible States – The States cannot be separated from the Union. The area, boundaries or names can be changed but the States lack territorial integrity.
Emergency Provision – During Emergencies, the Union becomes all powerful. The administration of States is done by the Centre.
Single Citizenship – In India there is Single Citizenship. A person is not granted any State citizenship as it is in case of America. Single Constitution – There is the existence of one Constitution. The States do not have any separate Constitution.
Integrated Judiciary – The Supreme Court is the apex Court and there is a High Court in every state. This single system of Court enforces both Central and State Laws.
All India Services – There is the provision of All India Services which are common for the Centre and the States.
Appointment of Governor – The Governor of the State is appointed by the President. Control over the State is maintained by the Centre through him and he holds office during the pleasure of the President.
Fundamental Duties:
Part IV-A of the Constitution consists of Fundamental duties. This part prescribes certain duties to be performed by the citizens. The basic aim of this Part is to make the citizens aware that they need to follow a Code of Conduct. Some of the duties are to abide by the Constitution and to respect the National Flag and National Anthem, to cherish the noble ideas which inspired our national struggle for freedom, to safe guard public property[iv].etc.
Adult Suffrage:
Elections are conducted in the Country. Any person above 18years of age is allowed to participate in the Voting system and to elect Representatives for the Legislature. Since India has a Democratic form of Government the people are suppose to get fair chances to form the Government.
Single Citizenship:
A citizen of India is only an Indian Citizen. There is no State citizenship like it is in the case of America. America provides dual citizenship – one is the citizenship of America and other is a State citizenship.
Independent Judiciary
An independent and impartial Judiciary is essential for proper delivery of justice. Judiciary protects the rights of the citizens provided under the Constitution. Moreover, Judiciary plays a vital role in the settlement of inter-state and Centre-State disputes.
Judicial Review:
In the process of Judicial Review, the Court rechecks the decisions of the executive and the legislature. If the provisions of any Statute violates any article of the Constitution or is in conflict with the provisions of the Constitution, the Supreme Court and High Courts shall strike out such provision. Judicial Review acts as a check on the executive and legislative organs.
Need for Judicial Review – Under Judicial Review the Court has the power to declare laws in conflict with the Constitution as invalid. As a result the nation is governed according to the provisions of the Constitution.
Case Laws:
- Shankari Prasad vs. Union of India[v]–In this case, it was held that the Parliament under Article 368 has the power to amend any part of the Constitution including Part III.
- Sajjan Singh vs. State of Rajasthan[vi] – The Supreme Court delivered the same judgement relating to amendment in this case too.
- Golak Nath vs State of Punjab[vii] – The Court held that the Parliament does not have power to amend Part III of the Constitution. Article 368 does not grant absolute power of amendment to the Parliament.
- Kesavananda Bharti vs. State of Kerela[viii] – The Supreme Court held that the Parliament has the power to amend any provision of the Constitution but the basic structure of the Constitution is to be maintained.
The United States and the Indian Constitution
There are certain similarities between the U.S and the Indian Constitution. U.S also has a written Constitution like India. Both the Constitutions provide for a federal structure of Government. Powers are distributed between both the Governments and they work accordingly. The U.S Constitution also has provisions for amendment of the Constitution like the Indian Constitution.
The Bill of Rights included in the U.S Constitution provide its citizens various fundamental rights like Right to Equality, Right against exploitation, Right to freedom, Cultural and Educational Rights. Fundamental Rights mentioned in Part III of the Indian Constitution serve the same purpose.
The U.S Constitution also has the provision of separation of powers like the Indian Constitution. There are three organs namely the Legislative, the Executive and the Judiciary. The Legislature is the law making body, the Executive governs the nation and the Judiciary settles disputes and imparts justice. U.S and India both have Bicameral Legislature. In U.S, there are 2 Houses named the House of Senate and the House of Representatives. In India, there are 2 Houses named the LokSabha and the Rajya Sabha.
However, the U.S Constitution differs from the Indian Constitution on the basis of some features. The U.S Constitution is rigid but the Indian Constitution is partly flexible and partly rigid. The U.S Constitution is precise and rigid. Its amendment procedure is rigid unlike India. Its Constitution has been amended only 27 times by far.
U.S has a Presidential form of Government which means the President is the head of the State and all the powers lie in his hand. On the other hand, India has a Parliamentary form of Government which means the President is the Constitutional head of the state and the real executive powers is in the hands of the Prime Minister and the Council of Ministers.
The Constitution of U.S provides for Dual Citizenship which means a person is the citizen of the Country as well as the State. However, in India there is the provision of Single Citizenship. There is no separate State Citizenship.
There are some differences in the Judiciary of both the Constitutions. In U.S a Judge holds office till the time he is capable of performing his duties whereas in India there is a specific retirement age of the Judges of Supreme Court and High Court.
The United Kingdom and the Indian Constitution:
The U.K and the Indian Constitution differ on various grounds. However there are two similarities. U.K also has a Parliamentary form of Government like India. In U.K, the King is the head of the State but he is not assigned with the real powers. The governing powers are exercised by the Ministers. Another similarity is the independence of Judiciary. The procedure of removal of Judges is not simple. The Judges can be removed on grounds of misbehaviour only by the consent of both the Houses.
The Constitution of U.K is unwritten and is mainly based on conventions and political traditions which were being followed there. It was developed in a evolutionary manner. Any Constituent Assembly has not framed it. The Indian Constitution is written and is framed by the Constituent Assembly.
The Constitution of U.K is flexible which means the amendment procedure is easy. All the provisions can be amended by a Simple Majority that is 50% of the members who are present and voting. On the other hand, some provisions in the Indian Constitution can be amended by a Simple Majority, some by Special Majority and some provisions also require ratification by States. Therefore, Indian Constitution is partly flexible and partly rigid.
The Constitution of U.K is more of a unitary character than a federal one. The powers are vested in the British Parliament and the organs of the State exercise only delegated powers.
Indian Constitution declares it to be a Republic whereas the U.K is a monarchy. In U.K the King is the head of the State and such position is hierarchy. In India the President and all the governing authorities are elected by Elections. Any hierarchical system is not followed.
Frequently Asked Questions
1. Can the basic structure of Indian Constitution be amended?
No, it was held in Kesavananda Bharti case that the basic structure of the Indian Constitution cannot be amended.
2. What is the difference between Parliamentary and Presidential form of Government?
In case of Parliamentary form of Government, the President is the Constitutional head of the state and the real executive power is vested in the Prime Minister who heads the Council of Ministers and the ministers are collectively responsible to the Lok Sabha. The members of the Lok Sabha are directly elected by the citizens.
In case of Presidential form of Government, the President is directly elected by the people and he is the real executive head of the state. He appoints the members of the Cabinet and they are responsible to him.
3. How is the Indian Constitution both flexible and rigid?
Some of the provisions of the Indian Constitution are rigid and some are flexible. The provisions which require special amendment procedure are rigid and which require ordinary legislative process is flexible.
Edited by Madonna Jephi
Approved & Published – Sakshi Raje
Reference
[i]42nd Amendment Act, 1976
[ii]42nd Amendment Act, 1976
[iii]Dr.J.N.Pandey, Constitutional Law of India, 25 (53rd edition, 2016), Central Law Agency, Allahabad
[iv]Part IV-A, Constitution of India, 1950
[v]Shankari Prasad V Unon of India, AIR 1951 SC 458
[vi]Sajjan Singh V State of Rajasthan, AIR 1965 SC 845
[vii]Golaknath V State of Punjab, AIR 1967 SC 1643
[viii]Kesavananda Bharti V State of Kerela, AIR 1973 SC 1461
