Chapter- I
Characteristics of Indian Constitution
The salient features of Indian Constitution are as follows: -
1) Largest and most detailed constitution:
The original Constitution had 395 Articles, 22 parts and 8' schedules. While framing the
Constitution, the framers of Indian Constitution derived the best features of each of the existing
Constitutions of all the countries and incorporated the same in the Indian Constitution.
2) Democratic set-up of Government: -
The Constitution of India constitutes India into sovereign, socialist, secular, and democratic
republic. The Constitution provides for the democratic set-up of Government.
3) Rigidity and flexibility: -
Indian Constitution is more flexible than rigid. The rigidity and flexibility of the constitution about
the law of amendment depends upon the nature of the amendment proposed. It is rigid where
the nature of the amendment proposed requires it to be rigid.
According to Article 368, some provisions can be amended by simple majority, some provisions
require two-third majority of total membership of each house of parliament.
4) Combination of federal and unitary features: -
The Constitution of India is a unique combination of federal as well as unitary features. The
constitution has all the features of federations, such as: -
i) Written Constitution.
ii) Distribution of powers between Centre and States.
iii) Independent authority of judiciary.
iv) Supremacy of the constitution. However, the States are independent only in certain
respects and the Centre has a strong control over the functions of the States.
The Centre can encroach upon the field reserved for the States in some cases, E.g.
i. The appointment of Governors.
ii. The assumption of administration of the state in the event of constitutional
breakdown.
iii. The period of emergency
The constitution is federal in normal times, but it is unitary in the emergency period.
5) Supremacy of the constitution: - (Federal Constitution)
Supremacy of written constitution is the special feature of the constitution of India. All the
organs of State draw their powers from the constitution. All the laws must be in conformity of
the constitution and if the law is in violation of the provisions of the constitution, it is void
6) Independency Judiciary: - (Federal Constitution)
The Supreme Court bf India is the highest Cout of law, and it is independent of both the Centre
and the States. The judiciary in India is independent and draws its power from the constitution. It
has power to issue writs of all kinds and it enjoys original jurisdiction with regard to matters
falling under fundamental rights.
7)Independent election machinery:
The Constitution of India provides for independent election machinery. The election to Central and
State legislature, and election to the office of President and Vice-president are conducted by such
independent election machinery. The election commissioner who is appointed under the
Constitution of India is an independent body.
8) Fundamental Rights: -
The fundamental rights included in part IlI of the constitution are guaranteed to every citizen and are
made enforceable at the initiation of any citizen in the event of its infringement or violation by any
action of the state Whether executive or legislature. Any action of executive of State or Centre, which
violates a fundamental right, is declared void by Supreme Court or
9) Directive principles of State policy:
Directive principles of State policy are included in part IV of the Constitution. Directive principles are
guidelines to be followed by the State with a view to achieve the welfare of the people. Directive
principles are not enforceable in the Courts.
10) Fundamental duties: -
Article 51 A of the Constitution enumerates of fundamental duties.
These fundamental duties are introduced by the Constitution 42 Amendment Act, 1976. The
fundamental duties can be enforced by the judiciary. Every citizen of India is under an obligation to
perform these fundamental duties.
11) Single citizenship: - (Unitary constitution)
In India, there is only one citizenship. All the people residing in any part of the India have one and
only one citizenship of India.
12) Universal adult franchise: -
The Constitution of India provides for universal adult franchise to all the citizens of country. This right
to vote is an important right and this right is exercised by all the adults above 18 years of age.
13) Emergency provisions: - (unitary constitution)
In order to deal with abnormal situations like war, internal disturbances, such as, financial instability,
external aggressions, the Constitution of India has made the provision for declaration of emergency.
During the period of emergency, the fundamental rights can be suspended.
14) Reservation for backward classes: -
The provisions have been made in the constitution of India for the protection of backward classes.
Reservation for backward classes have been made for the seats in legislatures and in services under
the State and Central Government.
15. Judicial Reviews: - (Unitary constitution)
The Constitution of India grants power of judicial review to Supreme Court of India.
Chapter II
Fundamental Rights and Judicial Activism
Article 14: -
"The State shall not deny to any person equality before the law, or equal protection of the law within
the territory of India."
The first expression "equality before the law" is a declaration of equality of all persons within the
territory of India, implying thereby, the absence of any special privilege in favour of any individual, no
man is above the law.
The second expression "equal protection of law" directs that, equal protection shall be secured to all
persons within the territory of India in the enjoyment of their rights and privileges without
favouritism and discrimination.
It means that, all persons should be subjected to the ordinary laws of the land equally, and no
person, irrespective of his status, rank, and condition, should be treated above the law.
Case law: - Shiv Shankar v/s M. P. Government AIR 1951 Nagpur58.
It was held in this case that "Equality before the law" is the negative concept, which means, absence
of any special privilege in favour of any individual or class, irrespective of the status, rank and office.
It was also held in this case that, "Equal protection before law" is the positive concept which would
certainly mean that "equality of treatment in equal circumstances"
Exceptions to equality before the law:-
1. President or Governor of the State –
They are not answerable to any Court for the discharge of their duties and exercise of the powers
while in the office.
2. Bar of criminal proceedings - (President and Governor)
3. Bar of civil proceedings- (President and Governor)
4. Proceedings prior to the existence of the constitution cannot be challenged.
5. Foreign sovereigns and ambassadors
Principle of classification:- Article 14 of the Constitution of India does not prohibit classification. It
only forbids class legislation. For the purpose of permissible classification the following two
conditions must be complied with :- (i) the classification should be based upon on intelligible,
differential or sufficient to distinguish persons or things that clubbed together from the others who
are left out of such clubbing. (in) The differential should have rational relation to the purpose
expected to be achieved by the Act. The Article 15 of the Constitution of India lays down that, "The
States! all not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them. No citizen shall on grounds only of religion, race, cast, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to - access to shops,
public restaurants, hotels and place of public entertainment: or use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or partly out of state funds or dedicated to the
use of general public. Nothing shall prevent the State from making any special provision for women
and children Nothing in this Article or clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially or educationally backward classes of the citizen
or for Schedule Caste. and Schedule Tribes. Article 14 is available for all persons, Article 15 is available
for citizens
Principle of classification: -
Article 14 of the Constitution of India does not prohibit classification. It only forbids class legislation.
For the purpose of permissible classification, the following two conditions must be complied with: -
(i) the classification should be based upon on intelligible, differential, or sufficient to distinguish
persons or things that clubbed together from the others who are left out of such clubbing.
(ii) The differential should have rational relation to the purpose expected to be achieved by the
Act.
Article 15: -
The Article 15 of the Constitution of India lays down that,
"The States! all not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.
No citizen shall on grounds only of religion, race, cast, sex, place of birth or any of them, be
subject to any disability, liability, restriction, or condition regarding –
a. access to shops, public restaurants, hotels, and place of public entertainment: or
b. use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of state funds or dedicated to the use of general public.
Nothing shall prevent the State from making any special provision for women and children
Nothing in this Article or clause (2) of Article 29 shall prevent the State from making any special
provision for the advancement of any socially or educationally backward classes of the citizen or
for Schedule Caste. And Schedule Tribes.
Article 14 is available for all persons, Article 15 is available for citizens only
Clause 1- [Article 15(1)1
The scope of this Article is very wide. It is levelled against any state action relating to the citizen's
rights, whether political, civil, or otherwise.
Thus, a provision for communal representations based on separate electorates according to the
communities. Offenders this clause and any election held in accordance with the communal
representation must be held to be void and unconstitutional.
A discrimination against man or a woman, only on the ground of sex would be violative of Article
15(1).
Clause 2 (a and b) :-
The prohibition of this clause is levelled not only against the state out also against private persons.
In order to come under clause 2(b), the dedication must be in favour of the public generally, as
distinguished from the section of the people, E.g. Saraswat Brahmins etc.
Clause 3 - Article 15 (3) 2-
This clause is the exception to the rule against discrimination provided by clause (1) and (2).
Thus, the provision of maternity relief for women employees (Article
42) will not be a contravention of prohibition under Article 15 (1). Children (Article 45) or measures
for provision against their exploitation (Article 39(1)
is also not contravention of Article 15 (1).
Note: It also supports a provision like that in section 497 of IPC. which says that in an offence of
adultery, though the man is punishable for adultery, the women is not punishable as abettor.
Clause (4) -Article 15(4): -
Special provision for backward classes: -
Clause No. (4) is an exception to clause (1) in so far as it forbids discrimination on ground of 'Race'
and 'Caste'.
It is also in the nature of exception to Article 29(2). Therefore, in making reservation for the
backward classes, the State cannot ignore the fundamental rights of rest of the citizens.
Article 16:
(Provisions of the constitution relating to equality of opportunity in matter of employment.
Article 16(1):
to employment to any office under the State.
There shall be equality of opportunity for all citizons in matters relating
Article 16(1) does not forbid a reasonable classification of employees or reasonable tests for their
selection. Equality of opportunity for employment means, equality between members of separate
independent class.
The classification under Article 16(1) must be based on -
An intelligible differentia between persons who are grouped together from others left out of the
group and,
that the differentia must have a rational relation to the object sought to be achieved.
Article 16(2): -
"No citizen shall, on grounds only on religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against, in respect of any employment under the
State."
Article 16(2) lays down specific ground based on which citizens are not be discriminated against each
other. The scope of Article 16(1) is wider than Article 16(2), because discrimination on grounds other
than those mentioned in clause (2) of Article 16 has to be weighed and judged in the light of Article
16(1).
There is no constitutional provision against private persons preferring men of one religion over the
others in making appointment.
Article 16(3):
"Nothing in this Article shall prevent the State from making any law prescribing, in regard to a class
or classes of employment under the Government of, or any local or other authority within a state of
union territory, any requirement as to residence within that state or Union Territory prior to such
employment." [domicile in Maharashtra etc.]
This clause embodies an exception to the prohibitions containing
Article 16(1) and 16(2). Under this clause, parliament is competent to regulate the extent to which it
would be permissible for a state to depart from the above principle.
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