salient features

1. Constitutional Law of India - 1
Module 1
Topic 5
Salient Features
By Gagan K

2. Salient Features
1. Modern Constitution
2. Written
3. Preamble
4. Socialist
5. Welfare state
6. Secular
7. Responsible Govt.
8. Funda-mental rights
9. Minorities and Backward Classes
10. Elections
11. Judiciary
12. Federal Constitution

3. 1. Modern Constitution
• Dr. Ambedkar said
– 100 years had commenced since the first
written Consti was drafted
– What new could be added?
– We could only remove the faults
– Accommodate the existing principles to suits
the needs of our country.
– We can learn from the experiences of other
countries

4. Features borrowed
• Federalism – America, Canada, Australia
• FR – American Bill of Rights
• Amedment – USA
• Writs and Parliamentary form – UK
• Centre-State relations and Freedom of trade &
commerce – Australia
• Directive Principles (hereinafter DPSP) – Irish
Constitution
• What new? – Minority rights, Special rights for
Backward Classes, Reduced the rigidity of usual
federalism.

5. 2. Written Constitution
• Elaborate – originally had 395 Articles. Now
expanded and more than 440 articles
• So many aspects are given in a detailed way
– Citizenship details (including Indo-Pak location)
– Territory defined
– FRs, DPSP, Fundamental Duties
– Judiciary powers
– State legislature, Executive details
– Centre-state relations
– Local Govts (73rd
, 74th
amendment)
– Now – Cooperative societies
– 3 Lists – State, Union and Concurrent

6. 3. Preamble
• Gives the source and sanction (we the people of
India is the source and sanction)
• Nature of polity (sovereign, socialist, democratic,
republic)
• Objectives (secure its citizens equality, fraternity,
justice social economical political…)
• Preamble is the key to open the minds of the
Constitutional makers.
• Helpful in interpreting the Constitution

7. 3. Preamble
• Purposes
– Enacting clause
– Declares the great rights and freedoms
– Source – people
• Words used:
– Sovereign – no longer crown control
– Democratic – voting, elections
– Socialist – pro-people
– Replublic – No monarchy (re-public – power given
back to the public). Head of the State is President
who is the representative of the people, not a King

8. Trinity
• Dr. Ambedkar during the closing speech of
Constitutional Assembly on November 25, 1949
said:
– “Liberty, equality and fraternity are trinity and should
be united. If they are divorced, then it would defeat
the very purpose of democracy”
• In Berubari case (AIR 1960 SC 845), it was held,
Preamble is not a part of the Constitution
• In Kesavananda case (AIR 1973 SC 1461), it
was held that Preamble is very much a part of
the Constitution.

9. 4. Socialist State
• Word “socialist” was added by way of 42nd
Consti
amendment in 1976
• Means, state ownership in most of the essential
services
• Mixed Economy
• Case: Samatha v. State of Andhra Pradesh –
“establishment of egalitarian social order
through rule of law” is basic structure.
• Principles in DPSP connote a “socialist state”

10. 5. Welfare State
• Social welfare
• State rendering social services
• Promote general welfare
• DPSP is the basis – promotion of health,
education, environment, and reduction of
inqualities.
• Non-justiciable – cannot be enforced in a
court of law

11. 6. Secular
• “Secular” word added by way of 42nd
Amendment
of 1976
• Prior to this amendment also, the principle of
“secular” was implicit because Indian State has
no recognised or official religion
• After amendment, the principle was made
“express”
• All religions equal, treated alike
• Secularism is a basic feature of our Constitution
as held in Kesavananda case

12. 7. Responsible Government
• Cabinet takes executive decisions
• But the cabinet is also answerable to the
Parliament
• Parliament makes laws and all the
representatives are accountable to the people
• President and Governors can reject the bills –
brings responsibility
• Writs – protect fundamental rights and makes
the State responsible

13. 8. Fundamental Rights
• Maneka Gandhi v. Union of India (AIR 1978 SC
597)
– “Courts should expand the reach and ambit of FRs
and not attenuate (reduce) it”
• Therefore, the FRs have been expanded, ambit /
scope widened during 70s and 80s. Hence not
just the FRs mentioned in the Part III, but also
several implied rights.
• Art. 32 and 226 are the tools to enforce FRs

14. 9. Minorities and Backward Classes
• Minorities – a State needs to protect its
minorities. Under Indian Consti, minorities
given special protection. Eg. Minorities
educational institutions.
• Backward Classes – economically and
socially backward people. Given several
special privileges. Eg. Under Art. 15 and
16.

15. 10. Elections
• Free and fair elections
• Universal Adult Franchise – all over 18
• Recently third gender have also been
given voting rights. This was implicit,
however denied for trivial reason of
existence of only two genders.
• Election Commission is an autonomous
body
• During elections, “model code of conduct”

16. 11. Federal Constitution
• Dual Government 1. Central , 2. State
• Orthodox federal structures have been changed to suit
Indian societal needs
• 3 lists that lay down the legislative power for passing
laws on specific subjects 1. Union list, 2. State list, 3.
Concurrent list
• During emergency, Indian Consti turns Unitary
• No dual citizenship
• In USA, every federal state can make its own
Constitution. This is not so in India.
• Some scholars classify Indian Consti as “quasi-federal”
• Broadly, Indian Consti is “federal” in nature.

17. 12. Fundamental Law
• No law can be made against the Constitution
• All laws abrogating / violating / infringing the
Constitution are void
• Sets out the powers of all the organs
• Constitution is the law “that holds together all
other laws”
• Granville Austin called it as the “Cornerstone of
a Nation”
• Kelson calls Constitution as the “grund norm”

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