Salient Features of Constitution (Part 2)

INDEPENDENT AND INTEGRATED JUDICIARY

• The Constitution of India establishes an independent and integrated Judiciary.
• The Indian Constitution has adopted number of measures to ensure the independence of judiciary. The legislature is not involved in the appointment of judges to avoid any kind of partisanship. The fixed tenure of judges ensures that judges will perform without fear or favour. The Constitution prescribes difficult procedure for the removal of judges. Judiciary is not financially dependent to legislature as their salaries and allowances are not subjected to the approval of the legislature.
• But the independence of judiciary does not mean arbitrariness or absence of accountability. It is accountable to the Constitution, to the democratic traditions and to the people of the country.
• The Constitution provides for a single integrated judiciary system in India. The hierarchical structure of judiciary is such that Supreme Court is at the top, High Courts below them and district and subordinate courts at the lowest level.
• Unlike USA, where federal laws are enforced by federal court and state laws by state courts, this single integrated system of judiciary enforces both central laws and state laws in India.

FUNDAMENTAL RIGHTS

• The Constitution of India guarantees all its citizens fundamental rights. It is called fundamental to suggest that these rights are so important that Constitution has separately listed them and made special provisions for their protection.
• These rights are binding on legislature as well as executive.
• India borrowed the concept of Fundamental Rights from American Constitution.
• Fundamental rights are different from ordinary rights. While ordinary laws are protected and enforced by ordinary law, the fundamental rights are protected by Constitution itself.
• Unlike ordinary rights, fundamental rights can be changed only by amending the Constitution itself.
• The Fundamental rights enshrined in our Constitution are:
  • Right to equality (Article 14-18)
  • Right to freedom (Article 19-22)
  • Right against exploitation (Article 23-24)
  • Right to freedom of religion (Articles 25-28)
  • Cultural & educational rights (Articles 29-30)
  • Right to Constitutional remedies (Article 32)
• No branch of the state, legislature, executive or even judiciary, can act in a manner that violates these rights. Any act of legislature or order of executive can be declared as null and void if it violates any of Fundamental Rights guaranteed in the Constitution.
• The Fundamental rights are justiciable which means they can be enforced through a court of law.
• If these rights are violated, citizens can approach Supreme Court or High Court to restore these rights. The Courts can issue various special orders called writs for the enforcement of the fundamental rights. Habeas Corpus, Mandamus, Prohibition, Quo Warranto, Certiorari are the five writs issued by Higher courts.
• But Fundamental rights are not absolute and unlimited. Government can impose reasonable restriction for common good.

DIRECTIVE PRINCIPLES OF STATE POLICY

• Constitution borrowed the principle of Directive Principles of State Policy from Ireland, modeled on ‘Principles o Social Policy’ contained in Irish Constitution.
• Part IV, Articles 36-51 of the Indian Constitution constitutes the Directive Principles of State Policy which contain the broad directives or guidelines to be followed by the State while establishing policies and laws.
• Article 37 of Indian Constitution states that the Directive principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
• This is meant for promoting the ideal of a social and economic democracy.
• DPSP is not justiciable, meaning they cannot be enforced by a court of law. The court cannot declare any law as void on the ground that it contravenes the DPSP.

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While most of the Fundamental Rights are negative obligations on the state (since it limits the scope of state action), DPSP are positive obligations on the state, though not enforceable in a court of law. The main objective of fundamental rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of directive principles of state policy is to establish just social and economic order.

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FUNDAMENTAL DUTIES

• Fundamental Duties was not included in original Constitution which came to existence in January 26, 1950. It was added by the 42^nd Amendment, 1976 by introducing Article 51A as Part IVA of the Constitution upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year.
• Like Directive Principles of State Policy, it is also non-justiciable (not enforceable) in nature.
• India borrowed the concept of Fundamental Duties from USSR.
• Part IVA lists eleven fundamental duties

BORROWED FEATURES OF INDIAN CONSTITUTION

Name of Countries	Borrowed Features
Britain	1. Parliamentary government 2. Rule of Law 3. Legislative procedure 4. Single citizenship 5. Cabinet system 6. Prerogative writs 7. Parliamentary privileges 8. Bicameralism
Ireland	1. Directive Principles of State Policy 2. Method of Election of the president 3. Members nomination to the Rajya Sabha by the President
Unites States of America	1. Impeachment of the president 2. Functions of president and vice-president 3. Removal of Supreme Court and High court judges 4. Fundamental Rights 5. Judicial review 6. Independence of judiciary 7. Preamble of the Constitution
Canada	1. Centrifugal form of federalism where the centre is stronger than the states. 2. Residuary powers vest with the centre 3. Centre appoints the Governors at the states 4. Advisory jurisdiction of the supreme court
Australia	1. Concept of Concurrent list 2. Joint sitting of the two houses 3. Freedom of trade and commerce
USSR (Now Russia)	1. Fundamental duties 2. The ideals of justice (social, economic and political), expressed in the Preamble.
France	1. Concept of  “Republic” 2. Ideals of Liberty, Equality and Fraternity(contained in the Preamble)
Germany	1. Fundamental Rights are suspended during Emergency
South Africa	1. Election of members of the Rajya Sabha 2. Amendment of the Constitution
Japan	1. Concept of “procedure established by Law”

SCHEDULES OF THE CONSTITUTION

• Indian Constitution originally had 8 schedules. Now it has 12 schedules.
• The 9th schedule was added via First Amendment Act in 1951, to insulate land reform acts of various state governments from judicial scrutiny. The laws listed in this schedule were exempted from judicial scrutiny. On January 11, 2007, Supreme Court ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution.
• 10th Schedule was first added by 35th Amendment to designate Sikkim as Associate State. Once Sikkim became a state of India in 1975, the 10 Schedule was repealed. But later added once again by 52th Amendment Act, 1985 as a part of Anti-defection law.
• 11^th and 12 schedules were added as 73^rd and 74^th Amendments, to give constitutional status to Panchayathi Raj Institutions and Municipalities.

LIST OF SCHEDULES OF INDIAN CONSTITUTION
First Schedule	List of States & Union Territories
Second Schedule	Salary of President, Governors, Chief Judges, Judges of High Court and Supreme court, CAG.
Third Schedule	Forms of Oaths and affirmations
Fourth Schedule	Allocate seats for each state of India in Rajya Sabha
Fifth Schedule	Administration and control of scheduled areas and tribes
Sixth Schedule	Provisions for administration of Tribal Area in Asom, Meghalaya, Tripura, Mizoram & Arunachal Pradesh
Seventh Schedule	Gives allocation of powers and functions between Union & States. It contains 3 lists: Union List(Power of centre), States List(Power of states) and Concurrent List(Power of both)
Eighth Schedule	List of 22 languages of India recognized by Constitution 1. Assamese 2. Bengali 3. Gujarati 4. Hindi 5. Kannada 6. Kashmiri 7. Manipuri 8. Malayalam 9. Konkani 10. Marathi 11. Nepali 12. Oriya 13. Punjabi 14. Sanskrit 15. Sindhi 16. Tamil 17. Telugu 18. Urdu 19. Santhali 20. Bodo 21. Maithili 22. Dogri Originally it had 14 languages. Sindhi was added in 1967 by 21st Amendment Konkani, Manipuri ad Nepali were added in 1992 by 71th amendment Santhali, Maithili, Bodo and Dogri were added in 2003 by 92th amendment
Ninth Schedule	Added by 1st amendment in 1951. Contains acts & orders related to land tenure, land tax, railways, industries
Tenth Schedule	Added by 52nd amendment in 1985. Contains provisions of disqualification of grounds of defection
Eleventh Schedule	By 73rd amendment in 1992. Contains provisions of Panchayati Raj.
Twelfth Schedule	By 74th amendment in 1992. Contains provisions of Municipal Corporation.

PARTS OF CONSTITUTION

Parts	Subject Matter	Articles Covered
I	The Union and its territory	1 to 4
II	Citizenship	5 to 11
III	Fundamental Rights	12 to 35
IV	Directive Principles of State Policy	36 to 51
IV-A	Fundamental Duties	51-A
V	The Union Government	52 to 151
	Chapter I – The Executive	52 to 78
	Chapter II – Parliament	79 to 122
	Chapter III – Legislative Powers of President	123
	Chapter IV – The Union Judiciary	124 to 147
	Chapter V – Comptroller and Auditor-General of India	148 to 151
VI	The State Governments	152 to 237
	Chapter I – General	152
	Chapter II – The Executive	153 to 167
	Chapter III – The State Legislature	168 to 212
	Chapter IV – Legislative Powers of Governor	213
	Chapter V – The High Courts	214 to 232
	Chapter VI – Subordinate Courts	233 to 237
VIII	The Union Territories	239 to 242
IX	The Panchayats	243 to 243-O
IX-A	The Municipalities	243-P to 243-ZG
IX-B	The Co-operative Societies	243-ZH to 243-ZT
X	The Scheduled and Tribal Areas	244 to 244-A
XI	Relations between the Union and the States	245 to 263
	Chapter I – Legislative Relations	245 to 255
	Chapter II – Administrative Relations	256 to 263
XII	Finance, Property, Contracts and Suits	264 to 300-A
	Chapter I – Finance	264 to 291
	Chapter II – Borrowing	292 to 293
	Chapter III – Property, Contracts, Rights, Liabilities, Obligations and Suits	294 to 300
	Chapter IV – Right to Property	300-A
XIII	Trade, Commerce and Intercourse within the Territory of India	301 to 307
XIV	Services under the Union and the States	308 to 323
	Chapter I – Services	308 to 314
	Chapter II – Public Service Commissions	315 to 323
XIV-A	Tribunals	323-A to 323-B
XV	Elections	324 to 329-A
XVI	Special Provisions relating to Certain Classes	330 to 342
XVII	Official Language	343 to 351
	Chapter I – Language of the Union	343 to 344
	Chapter II – Regional Languages	345 to 347
	Chapter III-Language of the Supreme Court, High Courts, and so on	348 to 349
	Chapter IV-Special Directives	350 to 351
XVIII	Emergency Provisions	352 to 360
XIX	Miscellaneous	361 to 367
XX	Amendment of the Constitution	368
XXI	Temporary, Transitional and Special Provisions	369 to 392
XXII	Short title, Commencement, Authoritative Text in Hindi and Repeals	393 to 395