Chapter 2: Indian Constitution

PREAMBLE

The Constitution of India came into force on January 26, 1950. The preamble to the Constitution sets out the aims and aspirations of the people of India. Constitution of India is basically federal but with certain unitary features. The essential features of a Federal or System are – dual Government, distribution of powers, supremacy of the Constitution, independence of Judiciary, written Constitution, and a rigid procedure for the amendment of the Constitution.

Most of the Constitutions generally have a preamble. It reflects the ideals and goals of the framers of the Constitution. It is the ‘key to open the mind of the makers which may show the general purpose for which they made several provisions in the Constitution” [Supreme Court in Re- Berubari Case]. The US Constitution was the first constitution to begin with a Preamble. Pt.Nehru drafted the Preamble of Indian Constitution. It was based on the objective Resolution adopted by the Constituent Assembly.

The Preamble in its present form reads as follows:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into   a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its 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];

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

N.A.Palkiwala called the Preamble as the “Identity Card of the Constitution”. Though in Re-Berubari Case the Supreme Court held Preamble is a not part of Constitution, in the historic Kesavanada Bharati case(1973) it is held that Preamble is  an  integral part of our Constitution . It also contain the date of  adoption of our Constitution ie. 26th November 1949. (This day is observed as Law Day (Constitution Day)in India]. The Preamble is Non-justiciable that is, its provisions are not enforceable in Courts. The Preamble cannot override the express provisions of the Act. In Kesavanada Bharati Supreme court cautioned that the “basic elements” in the Preamble cannot be amended. It was  amended only once by the 42nd Amendment (1976) which added the words “Socialist, secular and integrity” in to it. The ideals of liberty, equality and fraternity are inspired by the French Revolution.

Cases:

Berubari Case (1960): SC held Preamble is not part of Constitution  and cannot be amended. 

Kesavanada Bharati (1973): 13  Member  Bench  of  SC  held  Preamble  is  part of Constitution and can be amended without altering its “basic structure”.

Fundamental Rights

The fundamental rights are envisaged in Part III of the Constitution. These are:

      i.        Right to Equality;

    ii.        Right to Freedom;

   iii.        Right against Exploitation;

   iv.        Right to Freedom of Religion;

    v.        Cultural and Educational Rights;

   vi.        Right to Constitutional Remedies.

The Directive Principles as envisaged by the Constitution makers lay down the ideals to be observed by every Government to bring about an economic democracy in this country.

Article 51A: imposing the fundamental duties on every citizen of India was inserted by the Constitution (Forty-second Amendment) Act, 1976.

The most important legislative power conferred on the President is to promulgate Ordinances. The ambit of this Ordinance-making power of the President is co-extensive with the legislative powers of the Parliament. The Governor’s power to make Ordinances is similar to the Ordinance making power of the President and has the force of an Act of the State Legislature.

The Union of India is composed of 28 States and both the Union and the States derive their authority from the Constitution which divides all powers-legislative, executive and financial, between them. Both the Union and States are equally subject to the limitations imposed by the Constitution. However, there are some parts of Indian Territory which are not covered by these States and such territories are called Union Territories.

The courts in the Indian legal system, broadly speaking, consist of-

      i.        the Supreme Court,

    ii.        the High Courts, and

   iii.        the subordinate courts.

The Supreme Court, which is the highest Court in the country is an institution created by the Constitution. The jurisdiction of the Supreme Court is vast including the writ jurisdiction for enforcing Fundamental Rights.

The increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to meet changing circumstances, have made it necessary for the legislatures to delegate its powers.

Article 50 of the Constitution of India dealing with Separation of judiciary from executive. It provides that the State shall take steps to separate the judiciary from the executive in the public services of the State

A Bill is a draft statute which becomes law after it is passed by both the Houses of Parliament and assented to by the President. All legislative proposals are brought before Parliament in the forms of Bills.

Parliamentary Committees play a vital role in the Parliamentary System. They are a vibrant link between the Parliament, the Executive and the general public.