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1. Constitutional Governance: Minorities &
Secularism
Mr. AMAR KR DUBEY (B.A LL.B 2nd YEAR), Institute of Legal
Studies, Shri Ramswaroop Memorial University
Mr. OM PRAKASH (B.A LL.B 2nd YEAR), Institute of Legal
Studies, Shri Ramswaroop Memorial University
Background
Constitutional arrangements in the developed democracies have proved remarkably stable over
the postwar period, enabling governments to deliver unprecedented prosperity to their citizens.
Yet in recent decades, many of these long-established structures seem to be working poorly. At
one end of the spectrum, highly centralized constitutional arrangements – such as unitary
Westminster style parliamentary government – seem ill-equipped to manage the multiplicity of
demands spawned by pluralized societies, critical citizens, resurgent regionalism, and
information-based economies.
At the other end of the spectrum, systems with highly proportional electoral rules and multi-party
governments have seemed unable to respondent quickly and effectively to new social challenges.
While some of the most centralized regimes have begun to diffuse power – devolving authority
to regions, for instance, or democratizing upper chambers of the legislature – more fragmented
polities have experimented with more majoritarian electoral rules and more powerful executives.
How can we best understand the characteristic strengths and weaknesses of alternative
constitutional arrangements? What explains the patterns of reform we observe – with striking
innovation in some contexts but institutional inertia in others? Where constitutional
arrangements have been reformed, how successfully have such innovations reconciled demands
for broad representation with the need for effective and accountable government.
Meaning of constitution
A constitution is a set of fundamental principles or established precedents according to which a
state or other organization is governed. These rules together make up, i.e. constitute, what the
entity is. When these principles are written down into a single document or set of legal

2. documents, those documents may be said to embody a written constitution; if they are written
down in a single comprehensive document, it is said to embody a codified constitution. Some
constitutions (such as the constitution of the United Kingdom) are uncodified, but written in
numerous fundamental Acts of a legislature, court cases or treaties.
Constitutions concern different levels of organizations, from sovereign states to companies and
unincorporated associations. A treaty which establishes an international organization is also its
constitution, in that it would define how that organization is constituted. Within states, a
constitution defines the principles upon which the state is based, the procedure in which laws are
made and by whom. Some constitutions, especially codified constitutions, also act as limiters of
state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights.
The Constitution of India is the longest written constitution of any sovereign country in the
world, containing 444 articles in 22 parts, 12 schedules and 118 amendments, with 146,385
words in its English-language version, while the Constitution of Monaco is the shortest written
constitution, containing 10 chapters with 97 articles, and a total of 3,814 words.
Importance of Constitution
Importance of the constitution arises out of the following reasons:
1. To delimit the power of the government as a whole and of its various organs such as
executive, legislature and judiciary and to establish the rule of law and not the rule of man.
2. To provide against the encroachment on the individual’s right by the government.
3. To preserve the political institution against political whim or caprice.
4. To uphold the socio-political ideals of the community.
The constitution and the government
Institutions of governance – the Parliament, the President, the Judiciary, the Executive, etc. get
their power from the Constitution and are bound by it. With the aid of the Constitution, India is
governed by a parliamentary system of government with the executive directly accountable to
the legislature. It states that there shall be a President of India who shall be the head of the
executive, under Articles 52 and 53. The President's duty is to preserve, protect and defend the
constitution and the law under Article 60 of the Indian constitution. Article 74 provides that
there shall be a Prime Minister as the head of union cabinet which would aid and advice the
President in performing his constitutional duty. Union cabinet is collectively responsible to the
House of the People per Article 75(3).

3. The Constitution of India is federal in nature but unitary in spirit. The common features of a
federation such as written Constitution, supremacy of Constitution, rigidity of Constitution, two
government, division of powers, bicameralism and independent judiciary as well as unitary
features like single Constitution, single citizenship, integrated judiciary, flexible Constitution, a
strong Centre, appointment of state governor by the Centre, All-India Services, Emergency
Provisions etc. can be seen in Indian Constitution. This unique combination makes it quasi-
federal in form.
Each state and each Union territory of India has its own government. Analogous to President
and Prime Minister, each has a Governor (in case of states) or Lieutenant Governor (in the case
of Union territories) and a Chief Minister. Article 356 permits the President to dismiss a state
government and assume direct authority when a situation has arisen in which the Government
of the State cannot be carried on in accordance with the provisions of the Constitution. This
power, known as President's rule, was abused earlier as state governments came to be
dismissed on the flimsiest of grounds, and more due to the political discomfiture of the party in
power at the centre. Post – Bommai judgment, such a course of action has been rendered
rather difficult, as the courts have asserted their right to review it. Consequently, very few state
governments have been disbanded since.
The 73rd and 74th Amendment Act also introduced the system of Panchayati Raj in rural areas
and Municipality in urban areas. Also, Article 370 of the Constitution gives special status to the
State of Jammu and Kashmir.
The constitution and the legislature
Amendment
The process of addition, variation or repeal of any part of the constitution by the parliament
under its constituent powers, is called amendment of the constitution. The procedure is laid out
in Article 368. An amendment bill must be passed by each House of the Parliament by a
majority of the total membership of that House when at least two-thirds members are present

4. and voted. In addition to this, certain amendments which pertain to the federal nature of the
Constitution must be ratified by a majority of state legislatures. Unlike the ordinary bills under
legislative powers of Parliament as per Article 245 (with exception to money bills), there is no
provision for joint sitting of the two houses (Lok Sabha and Rajya Sabha) of the parliament to
pass a constitutional amendment bill. During recess of Parliament, President can not
promulgate ordinances under his legislative powers per Article 123, Chapter III which needs
constitutional amendment. Deemed amendments to the constitution which can be passed
under legislative powers of Parliament, are no more valid after the addition of Article 368 (1) by
Twenty-fourth Amendment of the Constitution of India.
As of September 2015, there have been 120 amendment bills presented in the parliament, out
of which 100 have been passed to become Amendment Acts. Most of these amendments
address issues dealt with by statute in other democracies. However, the Constitution is so
specific in spelling out government powers that many of these issues must be addressed by
constitutional amendment. As a result, the document is amended roughly thrice in a two-year
duration.
In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set
up to look into updating the constitution.[45] Government of India, establishes termbased law
commissions to recommend law reforms for maximising justice in society and for promoting
good governance under the rule of law.
Limitations
Basic structure doctrine
The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that an
amendment cannot destroy what it seeks to modify, which means, while amending anything in
the Constitution, it cannot tinker with the "basic structure" or its framework, which is
immutable. Such an amendment will be declared invalid even though no part of the
constitution is explicitly prevented from being amended, nor does the basic structure doctrine
protect any single provision of the Constitution. Yet, this "doctrine of basic features" lays down
that, the Constitution when "read as a whole", that what comes to be understood as its basic
features cannot be abridged, deleted or abrogated. What these "basic features" are, have not
been defined exhaustively anywhere, and whether a particular provision of the Constitution of

5. India is a "basic feature" is decided as and when an issue is raised before a court in an instant
case.
The judgment in the Kesavananda Bharati v. State of Kerala case laid down the following as the
basic structure of the constitution of India:
1-The Supremacy of the Constitution
2- Republican and Democratic form of the Government
3- Secular Character of the Constitution
4- Maintenance of Separation of powers
5- The Federal Character of the Constitution
This implies that the Parliament, while amending the Constitution, can only amend it to the
extent so as to not destroy any of the aforesaid characters. The Supreme Court/High Court(s)
may declare the amendment null and void if this is violated, by performing Judicial review. This
is typical of Parliamentary governments, where the Judiciary has to exercise an effective check
on the exercise of the powers of the Parliament, which in many respects is supreme.
In the Golak Nath v. State of Punjab case of 1967, the Supreme Court ruled that the State of
Punjab could not restrict any of the Fundamental rights protected by the basic structure
doctrine.Extent of land ownership and practice of profess.
Government of India
The Government of India is a federal government established by the Constitution of India as the
constituted governing authority of the union of 29 states and seven union territories of a
proclaimed and established parliamentary democratic republic, constitutionally called the
Republic of India. It is located in New Delhi, the capital of India.

6. the federal government is mainly composed of the executive, legislative, and judicial branches,
in which all powers are vested by the Constitution in the Parliament, the Prime Minister and the
Supreme Court. The President of India is the Head of State and the Supreme Commander of the
Indian Armed Forces while the people-elected Prime Minister acts as the chief executive (of the
executive branch) and is responsible for running the federal government. There is a bicameral
Parliament with the Lok Sabha as a lower house and the Rajya Sabha as an upper house. The
judicial branch systematically contains an apex Supreme Court, 24 high courts, and several
district courts; all inferior to the Supreme Court.
Legislative branch
Legislative branch in India is exercised by the Parliament and a bicameral legislature consisting
of the Rajya Sabha, and the Lok Sabha. Of the two houses of Parliament, the former is
considered to be the upper house or the Council of States and consists of members appointed
by the President and elected by the state and territorial legislatures. The latter is considered
the lower house or the House of the people.
Executive branch
The Executive Branch of government is the one that has sole authority and responsibility for the
daily administration of the state bureaucracy. The division of power into separate branches of
government is central to the republican idea of the separation of powers.
President
The executive power is vested mainly in the President of India, as per Article 53 (1) of the
constitution. The President has all constitutional powers and exercises them directly or through
officers subordinate to him as per the aforesaid Article 53(1). The President is to act in
accordance with aid and advice tendered by the Prime Minister, who leads the Council of
Ministers as described in Article 74 of the Constitution of India.
Vice-President
The Vice-President of India is in the executive branch of the Government of India, following the
President. Vice-President represents the nation in the absence of the President.The Vice-
President also has the legislative function of acting as the Chairman of the Rajya Sabha.
Prime Minister

7. The Prime Minister of India, as addressed in the Constitution of India, is the chief of
government, chief adviser to the President of India, head of the Council of Ministers and the
leader of the majority party in the parliament. The prime minister leads the executive branch of
the Government of India.
Who are minorities?
Minorities include groups who (Capotorti, 1977; Deschênes, 1985):
Are less in number to the rest of the population of a state;
Are in a non-dominant position ;
Reside in the state, being either nationals or a group with close long-standing ties to the state;
Possess ethnic, religious, or linguistic characteristics differing from those of the rest of the
population; and
Show, if only implicitly, a sense of solidarity directed towards preserving their distinctive
collective identity.
Generally minority groups are recognized to include national, ethnic, cultural, linguistic, and
religious minorities, as well as some migrants, refugees, and indigenous and tribal peoples. It is
also important to consider that minorities are likely to be discriminated against or marginalized,
and they may develop increased group loyalty as a result of discriminatory and marginalized
relations with the state.
Basic Characteristics of Minority Groups
The six basic characteristics of minority groups are as follows:
1. Physical and cultural traits
2. Unequal treatment
3. Ascribed status
4. Solidarity
5. In-group marriage

8. 6. Subordination.
1. Physical and cultural traits:
Members of a minority group share some physical and cultural characteristics that distinguish
them from the dominant (majority) group. Each society has its arbitrary standards for
determining which characteristics are most important in defining dominant and minority group.
Physical characteristics such as skin colour are commonly called racial. Cultural (ethnic)
distinctions are rarely neutral and commonly associated with antagonism between groups.
2. Unequal treatment:
Members of a minority group experience unequal treatment. They are usually physically and
socially isolated from the dominant (majority) community. For example, the management of a
community hostel or an apartment complex (or building) may refuse to rent members of a
minority community.
For example, in India, it is often accused that the members of minority groups (Muslims or
Christians) are refused accommodation—renting or selling flats in the buildings managed or
owned by the members of dominant group. Not only this, in villages and small towns, it is seen
that the members of minority groups are forced to live in separate geographical localities.
Physical segregation ultimately leads to social segregation.
3. Ascribed status
Membership in a dominant (or minority) group is not voluntary. People are born into the group.
Thus, race, gender, ethnicity and religion are considered ascribed statuses.
4. Solidarity:
Minority group members have a strong sense of group solidarity. This sense of solidarity is the
outcome of prejudice and discrimination experienced by the minority group members. It is based
on ‘in-group consciousness’ which in turn gives rise to the feeling of ‘us’ versus ‘them’ or ‘i’
versus ‘they’.
It heightens feelings of common loyalty and interests. W.G. Sumner, in his book Folkways
(1906), noted that individuals make distinctions between members of their own group called
‘in-group’ and everyone else ‘out-group’.
5. In-group marriage:
Members of a minority group generally marry within their own group in order to keep alive
their cultural distinctiveness and to maintain group solidarity. Parsis, in India, and members of
other minority groups (Muslims or Christians) seldom marry in other groups.

9. 6. Subordination:
The minority is subordinate to the dominant (majority) in the distribution of power and
privileges in a society. This is the key characteristic of a minority group. The members of
minority groups have relatively low power, prestige and economic position in a society’s system
of social stratification. Not only this, they have to observe the norms, values, cultural patterns
and laws of the majority (dominant) group.
Secularism and Minorities in India
A secular state can be described as "a state whose population enjoys fundamental rights
completely without any discrimination of race, colour, creed, and life and property of all
citizens is safe in that state." It treats its citizens as equal irrespective of religion, caste and
creed. Political secularismmay be defined as the separation of religious activities from those of
the state, customarily referred to as "the separation of church and state" in the west. "It cannot
even be involved in interpretation or reform of any religion much less favour one over any
other. This model of secularismmay be characterized as maximum separation between state
and religion except on manifest grounds of morality, health and public order" (Donald, 1963:
375). The history of India since its independence shows that its behavior towards its minorities
and non-Hindu religions has been non-friendly and aggressive.