Constitution of India – salient features in Brief

The Constitution of India came into force on January 26, 1950. The enactment of the Constitution was an ambitious political experiment — with the universal adult franchise, federalism in a region consisting of over 550 princely States, and social revolution in a deeply unequal society. However, it was equally a unique achievement in terms of constitutional design

Here we will try to take the question papers under the following heads which have been asked from the year 2013. But before that, a brief introduction of each of the heads seems necessary.

1. Basic Features
2. Preamble
3. Fundamental Rights
4. Directive Principles of State Policy
5. Fundamental Duties
6. Separation of powers / Dispute Redressal mechanism / Institutions
7. Comparison of Indian Constitution with that of Other Countries
8. Constitutional Amendments
9. Emergency Provisions

We start with the Basic Features of the Indian constitution. pages are given below to help you trace the relevant information.

1. Introduction
2. Indian Constitution is a Written Constitution
3. Indian Constitution is a Detailed Constitution
4. Indian Constitution is drawn from various Nations

Basic Features of Indian Constitution

1. Written – Indian  constitution is a written constitution

Q. Name the countries which don’t have a written Constitution in one document?

1. The United Kingdom,
2. New Zealand,
3. Canada,
4. Israel,
5. Saudi Arabia
6. China
7. Sweeden
8. San Marino

2. Detailed Constitution 

It is the lengthiest in world. At the time of its commencement on 26th January, 1950 it consisted of 395 Articles in 22 Parts and 8 Schedules.

As of January 2021, there have been 104 constitutional amendments as a result now it consists of 448 Articles divided into 25 Parts with 12 Schedules.

It is much bigger than the US Constitution which has only 7 Articles and the French Constitution with its 89 Articles.

3. Drawn from various nations

Constitutions of all the Nations of the World were refered to and the good part of them was extracted to make ours.

4. Preamble (उद्देशिका) of the Constitution

The Preamble to the Constitution of India is a well drafted document which states the philosophy of the constitution.  It states in nutshell the nature of Indian state and the objectives it is committed to secure for the people.

• It declares India to be a Sovereign (सम्पूर्ण प्रभुत्त्व सम्पन्न) Socialist (समाजवादी) Secular (पंथ निरपेक्ष) Democratic (लोकतंत्रात्मक) Republic (गणराज्य) [Nation]. Although the word ‘a welfare state’ is not mentioned, the declaration to ensure undermentioned things to its citizens amounts to declaring it to be a Welfare State.
• It declares India to be committed to secure justice, liberty, and equality for the people. Justice or न्याय भी कैसा – सामाजिक, आर्थिक और राजनैतिक (Social, Economic & political). Liberty या स्वतन्त्रता किसकी – विचार, अभिव्यक्ति, विश्वास, धर्म, और उपासना की (Liberty of thought, expression, belief, faith and worship). Equality या समता किसकी – प्रतिष्ठा और अवसर की (Equality of Staus & opportunity).
• It declares India to be promoting fraternity among its citizens (समस्त नागरिकों के बीच बंधुता या भ्रातृत्त्व बढ़ाने वाला) & assuring dignity of the individual, and unity and integrity of the nation. (व्यक्ति की गरिमा और राष्ट्र की एकता और अखंडता को सुनिश्चित करने वाला अपना संविधान है)

5. India is a Socialist State

The amendment of 1976 to the Preamble has included the term ‘Socialism’. It is now regarded as a prime feature of Indian state. In light of it, India is committed to secure social, economic and political justice for its entire people by ending all forms of exploitation and by securing equitable distribution of income, resources and wealth. This is to be secured by peaceful, constitutional and democratic means.

6. India is a Secular State:

India gives special status to no religion. There is no such thing as a state religion of India. This makes it different from theocratic states (धर्म शासित या ईश्वर तंत्र संबंधी) like the Islamic Republic of Pakistan or other Islamic countries. Further, Indian secularism guarantees equal freedom to all religions. The Constitution grants the Right to Religious Freedom to all the citizens.

7. India is a Democratic State:

The Constitution of India provides for a democratic system i.e. the authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights. On the basis of these rights, the people freely participate in the process of politics. They elect their government which is responsible before the people. The people can change their government through elections. No government can remain in power which does not enjoy the confidence of the people. India is world’s largest democracy.

8. India is a Republic:

India is not ruled by a monarch or a nominated head of state. India has an elected head of state (President of India) who remains in power for a fixed term of 5 years. After every 5 years, the people of India indirectly elect their President.

9, India is a Union of States:

Article I of the Constitution declares, that “India that is Bharat is a Union of States.” The term ‘Union of State’ shows two important facts:

(i) That Indian Union is not the result of voluntary agreement among sovereign states, and

(ii) that states of India do not enjoy the right to secede (अलग नहीं हो सकते हैं) from the Union. अर्थात विलय के दस्तावेज़ पर हस्ताक्षर होने के बाद न ही अब कोई स्वतंत्र है न ही किसी के भी स्वतंत्र होने की कोई संभावना है। Indian Union has now 28 States and 8 Union Territories.

10. India is a Blend of Federalism and Unitarianism

While describing India as a Union of States, the Constitution provides for a federal structure with a unitary spirit. Scholars describe India as a ‘Quasi-Federation’ or ‘Quasi Federal’ or as ‘a federation with a unitary bias, or ‘a Unitarian federation’ or ‘Federation with a centralising tendency’ or ‘Co-operative federalism’ or ‘Bargaining of Federalism’.

Like a federation, the Constitution of India provides for:

• Two Governments: The Centre and the States/
• Division of Powers: The Seventh Schedule of the Constitution contains three lists of subjects which show how division of power is made between the two sets of government.
• Written Constitution: The Constitution of India is clearly written. Eve
• Supremacy of the Constitution.
• Independent judiciary: The Supreme Court of India is the highest court of justice in India.
• Bi-cameral (द्वि सदन) legislation: The Indian Parliament, i.e., the legislature has two houses – the Lok Sabha and the Rajya Sabha. We will see more about it in this section only under the head Bi-Cameral Union Parliament.

There are some States have Legislative Assembly (विधान सभा) and Legislative Council (विधान परिषद) both and are said to have a Bicameral legistaure. There the Vidhan Sabha is the lower house and corresponds to Lok Sabha.

Those states are Unicameral which have only Legislative Assembly.

States having bicameral legislatures:

• Andhra Pradesh
• Bihar
• Karnataka
• Maharashtra
• Telangana
• Uttar Pradesh

Like a Unitary or non-federal system, the Constitution of India provides for:

• Single Constitution: There are no separate constitutions for the States. In a true federation, there are separate constitutions for the union and the States.
• Centre’s control over States: The States have to respect the laws made by the central government and cannot make any law on matters on which there is already a central law.
• Rajya Sabha does not represent the States equality: In a true federation, the upper house of the legislature has equal representation from the constituting units or the States.
• Existence of States depends on the Centre: The boundary of a State can be changed by created out of the existing States.
• Single citizenship: In a true federal state, citizens are given dual citizenship. In India however, the citizens enjoy single citizenship, i.e., Indian citizenship or citizenship of the country as a whole.
• Integrated judiciary: India has a unified or integrated judicial system. The Supreme Court is the highest court of justice in the country and all other subordinate courts are under it.
• Appointment of State Gvoernor by Center.
• Having All India Service Commission.
• Emergency provisions: When emergency is declared, the Union or Central governments become all powerful and the State governments come under the total control of it. The State governments lose their autonomy.

In 1983, the Sarkaria Commission was constituted to review the Balance of Power between the Center and the States. It emphasized co-operative federalism in India. It is a fact that India has a strong Central government but it should not always try to interfere in the matters of the States. Both governments should respect one another’s power or authority and work harmoniously.

11. Blend of Rigidity and Flexibility:

Constitutions may be Rigid like that of America or Flexible like that of Britain. Constitution of India is partly rigid and partly flexible.

Article 368, of the Constitution provides for two special methods of amendment:

(i) Most of the provisions of the Constitution can be amended by the Union Parliament by passing an Amendment Bill by a majority of total membership and 2/3rd majority of members present and voting in each of its two Houses.

(ii) For the amendment of some specified parts, a very rigid method has been provided. Under it, first the Union Parliament passes the Amendment Bill by a majority of total membership and 2/3rd majority of members present and voting in each house , and then it goes to the State Legislatures for ratification. The Amendment gets passed only when it is approved by not less than one half of the several states of the Union.

Apart from the 2 provisions mentioned above which themselves represent the flexibility and rigidity of the Indian Constitution, there are some parts of the constitution that can simply be amended by a simple majority as an ordinary legislative process. They are not governed by Article 368 mentioned above. ( हद हो गयी न भारतीय संविधान के लचीलेपैन की)

12. Fundamental Rights:

Part III of the Constitution of India grants and guarantees Fundamental Rights to its citizens. It is called the Indian Bill of Rights. (Bill of Rights is the term used by American Constitution & not Indian. But people wish to coreelate the two hence the phrase Indian Bill of Rights may be used). Initially, 7 Fundamental Rights were granted but after the deletion of the Right to Property from the list of Fundamental Rights (44th Amendment Act 1979) their number came down to six.

These rights are meant for limiting the tyranny of the executive and arbitrary laws of legislatures.

They are justiciable, i.e. enforceable by court. An aggrieved may directly approach to any court – even the Supreme Court. The Court may issue writs which are of 5 types. They will be dealt with separately.

The Six Fundamental Rights are:

(i) Right to Equality (Articles 14 to 18):

It provides for Equality before Law, End of Discrimination, Equality of Opportunity, Abolition of untouchability and Abolition of Titles.

(ii) Right to Freedom (Articles 19 to 22):

It incorporates six fundamental freedoms –

1. freedoms of speech and expression,
2. freedom to form associations,
3. freedom to assemble peaceably without arms,
4. freedom to move freely in India,
5. freedom of residence in any part, and
6. freedom of adopting any profession or trade or occupation.

The Constitution lays down that the freedom of life and liberty cannot be limited or denied except in accordance with the procedure established by law. Right to livelihood has been decided to be covered under the Right to Life. Now under Art 21A Right to Education for the children between the ages of 6-14 years has been granted. Art. 22 guarantees protection against arbitrary arrest and detention.

(iii) Right against Exploitation (Articles 23 to 24):

This Fundamental Right prohibits sale and purchase of human beings, forced labour (begaar) and employment of children in hazardous jobs and factories.

(iv) Right to Freedom of Religion (Articles 25 to 28):

The grant of this right involves the freedom of conscience, religion and worship. Any person can follow any religion. It gives to all religions freedom to establish and maintain their religious institutions. No person can be compelled to pay any tax (जज़िया कर तो याद ही होगा) for the propagation of any religion. The state cannot levy a tax for any religion and constitution prohibits the imparting of religious instructions in schools and colleges.

(v) Cultural and Educational Rights (Articles 29 to 30):

Under this category the Constitution guarantees the rights of the minorities to maintain and develop their languages and cultures. It also confers upon them the right to establish, maintain and administer their educational institutions.

(vi) Right to Constitutional Remedies (Article 32):

This fundamental right is the soul of the entire Bill of Rights. It provides for the enforcement and protection of Fundamental Rights by the courts. It empowers the Supreme Court and High Courts to issue writs for the enforcement of these rights.

LIMITATIONS:

The fundamental rights are not absolute and are subject to reasonable restrictions.

They can be amended by Constitutional Amendment Act and hence are not sacrosanct. (अनुलंघनीय नहीं हैं – उनकी पवित्रता नष्ट की जा सकती है; वैसे ही जैसे 1978 में प्रधानमन्त्री श्रीमती इन्दिरा गांधीजी ने सम्पत्ति के अधिकार – Right to Property – को खत्म कर दिया। पहले वह भी एक मूल अधिकार था।

They can be suspended during National Emergency. But right ensured in Article 20 & 21 can not be suspended even during emergency. This has been made possible by an amendment done in Article 359.

Article 20

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself

Article 21

No person shall be deprived of his life or personal liberty except according to a procedure established by law.

Supreme Court has by its judgement included Right to Livelihood as Right to Life.

Few Courts have held that Violation of this right by private individuals is not within the preview of Article 21. There Natural Justice comes for the rescue. Even then this requires to be amended so as to include even the private individuals because India is a welfare state & How can the Legislatures afford to leave the people working under private people at their mercy.

India is fully committed to protect the human rights of all the people. In order to fulfil its commitment, The Protection of Human Rights Act. 1993 was passed by the Union Parliament. Under it the National Human Rights Commission was established. It is headed by a former Chief Justice of India. It acts as an independent commission with a status of a civil court. It works for preventing the violations of human rights of the people.

Its cases of proved violations of human rights, the NHRC can order the grant of compensation to the victims. Several State, Human Rights Commission are also working for the protection of Human Rights.

13. Fundamental Duties of the Citizens:

The original constitution did not provide for it. It was during Emergency when 42nd Constitutional amendment included them in in 1976. One more was added in 2002 by 86th Amendment. There are 11 duties given in Part IVA of the Constitution which has only a single article (Article 51 A).

The Fundamental Duties are, not enforceable by the courts. They are merely reminders to the citizens that what is expected by them. But as a matter of fact the same has simply remained a topic for competitions and the books of NCERT enlists them. We as a good citizen should practice & propogate them.

1. Respect for the Constitution, the national flag and the national anthem;

2. Cherish the noble ideals of the freedom struggle;

3. Uphold and protect the sovereignty, unity and integrity of India;

4. Defend the country and render national service when called;

5. Promote the common brotherhood of all the people of India and renounce any practice derogatory to the dignity of women;

6. Preserve the rich heritage of the nation’s composite culture;

7. Protect the natural environment and have compassion for living creatures;

8. Develop scientific temper, humanism and spirit of inquiry and reform;

9. Safeguard public property and abjure violence (हिंसा बंद करो);

10. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

11. who is a parent or guardian to provide opportunities for education to his child or, ward between the age of six and fourteen years.

14. Directive Principles of State Policy:

Part IV of the Constitution dealing with the ‘Directive Principles of State Policy’ provides one of the most striking features of the Indian Constitution. They seek to establish a welfare state. The Directive Principles are instructions to the state for securing socio-economic developmental objectives through its policies. These are to be implemented by both the Union for the States. Unlike Fundamental Rights they are non justiciable. But Supreme Court is trying to enforce the Directive Principles whenever possible. Mostly it is seen to be doing so in cases of minorities.

In the case of State Of Kerala & Anr vs N. M. Thomas & Ors on 19 September, 1975, Supreme court has held that, “The Directive Principles embody a commitment which was imposed by the Constitution makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in.”

Directive Principles are classified into Socialistic or Gandhian or Liberal depending upon their nature. We will see those aspects in detail later on.

15. Parliamentary System of Governance:

The Constitution of India provides for a parliamentary system of government at the Centre as well as in every state of the Union.

While The Constitution was being framed there were two types of Governance.

1. British Parliamentary System
2. American Presidential System

Parliamentary System is based on the principle of cooperation and coordination between the legislative and executive organs. While

Presidential System is based on the doctrine of separation of powers between the two.

Although we adopted the British Parliamentary System but with few differences. Like Indian Parliament is not the sovereign body like the British Parliament. Also The Indian Parliament has an elected head where as that of the British is headed by the hereditary head as it is monarchy as against our republican.

Features of Indian parliamentary system of governance:

1. Presence of both types of executives. President is the nominal or de jure or titular – Executive Only for the title; whereas Prime Minister is the real or the de facto executive.
2. Rule of the party in the majority.
3. Collective Responsibility. Ministers are collectively responsible to the Lok Sabha. They can be removed if the no-confidence motion is passed
4. Political Homogeneity: Unless it is a coalition Government member of the Council of Ministers belong to the same political party.
5. Double Membership: ministers are members of both the executive and the legislature.
6. The leadership of the Prime Minister gives him an important role in the government.
7. Dissolution of the Lok Sabha before the end of its term: The same can be done by the President on the advice of the Prime Minister.

16. Bi-Cameral Union Parliament:

The Constitution provides for a Bicameral Legislature at the Union level and names it as the Union Parliament. Its two Houses are: The Lok Sabha and the Rajya Sabha.

The Lok Sabha: It is the lower house of the parliament. It represents the people of India as its representatives are directly elected by them.

 Members of the Lok Sabha are elected by an adult universal suffrage and a first-past-the-post system to represent their respective constituencies, and they hold their seats for five years or until the body is dissolved by the President on the advice of the council of ministers.

In a first-past-the-post (FPTP or FPP; sometimes formally called single-member plurality voting or SMP) electoral system, voters cast their vote for a candidate of their choice, and the candidate who receives the most votes wins (irrespective of vote share).

The maximum strength of the House envisaged by the Constitution is 552, which is made up by the election of up to 530 members to represent the States, upto 20 members to represent the Union Territories and not more than two members of the Anglo-Indian Community to be nominated by the Hon’ble President, if,  in his/her opinion, that community is not adequately represented in the House. The total elective membership is distributed among the States in such a way that the ratio between the number of seats allotted to each State and the population of the State is, so far as practicable, the same for all States.

Every voter of 25 years or above of age is eligible to contest elections to the Lok Sabha. The tenure of the Lok Sabha is 5 years. But the President acting under the advice of Prime Minister can dissolve it earlier also.

The house meets in the Lok Sabha Chambers of the Sansad Bhavan, New Delhi.

The Rajya Sabha: is the upper and, indirectly elected second House of Parliament. It represents the states of the Indian union. The potential seating capacity of the Rajya Sabha is 250 (238 elected, 12 appointed), according to article 80 of the Indian Constitution.

Presently, the Rajya Sabha has 245 members. Out of these 233 members are elected by all the State Legislative Assemblies and 12 are nominated by the President from amongst eminent persons from the fields of Art, Science and Literature. The elected members are are elected by the legislatures of the states and union territories using single transferable votes through Open Ballot

Rajya Sabha is a quasi-permanent house. Some of its members retire every year in such a way that 1/3rd members retire after every two years.

Each member has a tenure of six years.

The Rajya Sabha meets in continuous sessions, and unlike the Lok Sabha, the Rajya Sabha, is not subjected to dissolution. However, the Rajya Sabha, like the Lok Sabha can be prorogued by the President.

The Vice President of India is the ex-officio Chairman of the Rajya Sabha, who presides over its sessions. The Deputy Chairman, who is elected from amongst the house’s members, takes care of the day-to-day matters of the house in the absence of the Chairman. The Rajya Sabha held its first sitting on 13 May 1952.^[3]

The Rajya Sabha meets in the eponymous chamber in Parliament House in New Delhi.

Since 18 July 2018, the Rajya Sabha has facility for simultaneous interpretation in all the 22 scheduled languages of India.^[4]

Of the two houses, of Parliament, the Lok Sabha is a more powerful House. It alone has financial powers. However, the Rajya Sabha is neither as powerless as the British House of Lords and nor the Lok Sabha is as powerful as the British House of Commons.

17. Parliamentary System of Governance:

India chose to follow the British Parliamentary System rather than the Presidential System of America, but with some difference:

Indian Parliament is not a sovereign body like the British Parliament.

Indian state has an elected head and not the hereditary head as Britain.

Parliamentary system is also known as the Westminster model of government or responsible government or cabinet government or Prime Ministerial Government. [Westminster refers to the Parliament of the United Kingdom, located in the UNESCO World Heritage Palace of Westminster — also known as the Houses of Parliament].

Features of Parliamentary Governemnt in India is:

1. Presence of nominal as well as a real executive both.President is the nominal or titular or de jure. Prime Minister is the real or de facto.
2. Majority party rule
3. Collective responsibility of the executive to the legislature. Ministers are collectively responsible to the Lok sabha and can be removed by a vote of no confidence.
4. Double membership: Ministers are the members of both the executive and the legislature.
5. Political homogeneity: Unless it is a coalition government, members of the council of ministers belong to the same party.
6. The leadership of the Prime minister gives him a crucial role in the government.
7. Dissolution of Lok Sabha before the end of its tenure is possible on the recommendation of the Prime minister to the President. This is the reason that it is said that in a parliamentary system executive enjoys getting the legislature dissolved.
8. Oath of Secrecy: Before entering the office the ministers have to take the oath given by President.

18. Universal Adult Suffrage or Universal Adult Franchise:

All men and women enjoy an equal right to vote. 

Each adult man and woman above the age of 18 years has the right to vote provided they are registered in electoral lists.

The introduction of voting rights to everyone irrespective of his literacy, caste, race, religion, sex, wealth, etc. was a very bold step of the Constitution makers. This can be understood in the light that such facility was not available even in the so-called comparatively more civilized countries of the west. The same is illustrated by going through what follows:-

1. The USA gave this right to women only in 1920 (it had become independent on 4 th July 1776).
2. Britain gave this right to women only in 1928 (Parliament of Great Britain was formed in May 1707. Even before that it had existed in a different form). Think about the Nation which had ruled over hundreds of Nations. Moreover, the highest body has been the Queen- A lady. Even there women did not have the right to vote for centuries. आइये गर्व करें अपने संविधान के निर्माताओं पर जिन्होंनें गुलाम होते हुये भी अपने शासक से ज्यादा सदाशयता देखाते हुये, नारी सशक्तिकरण के मिसाल को जगत के सामने रखा।
3. Erstwhile USSR (present day’s Russia) gave this right to women only in 1936.
4. France in 1945, &
5. Switzerland in 1971.

Universal adult franchises in India –

• In the beginning, voting age was 21. in 1989 it was reduced to 18 by the Constitutional Amendment Act of 1988.
• It makes the democracy broad-based.
• It enhances the self-respect and prestige of the common people.
• It upholds the principle of equality.
• It enables minorities to protect their interests.

19. Single Citizenship

All citizens in India enjoy common uniform citizenship. They are entitled to equal rights and freedoms, and equal protection of the state. There are certain tribal areas that enjoy a different status but it is to protect them.

Although our Constitution is federal hence envisages a dual polity of Centre and States, but unlike America which provides dual citizenship, we don’t.

20. Integrated and Independent Judiciary:

The Constitution of India provides for a single integrated judicial system common for the Union and the states. The Supreme Court of India works at the apex level, High Courts at the state level and other courts work under the High Courts.

Our Judicial System is independent. Constitution has made various provisions for ensuring its independence. The details shall be given in the relevant topic.

There are a total of 25 High Courts as on 2020.

Unlike America where the federal laws are enforced by the federal judiciary and the state laws by the state judiciary, at India the single system of Courts enforces both the Central laws as well as the State laws.

21. Balancing the Powers of Parliament & Judciary:

The Doctrine of Sovereignty of Parliament is a British concept. The Principle of Judicial Supremacy is an American. In India, the Constitution has engineered a blend of the two.

Parliament is empowered to amend the constitution and make laws while The Supreme Court has the power of Judicial Review by which it can declare the laws as unconstitutional.

Judiciary in India is under certain restraint as compared to that of American as the Constitution of America provides for the ‘due process of law’ whereas in India the Courts have to act in the limitation of the ‘procedure established by law’. But all is going on well. Currently, the Indian judiciary has been becoming more and more active towards the performance of its social obligations. Through the Public Interest Litigation system (PIL) as well as through a more active exercise of its powers, the Indian judiciary has been now very actively trying to secure all public demands and needs due to them under the laws and policies of the state.

Under this head a case is worth mentioning: Shah Bano Case –

Mohd. Ahmed Khan v. Shah Bano Begum [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945], commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the Congress government enacted a law with its most controversial aspect being the right to maintenance for the period of iddat after the divorce, and shifting the onus of maintaining her to her relatives or the Waqf Board. It was seen as discriminatory as it denied right to basic maintenance available to Muslim women under secular law.

Shah Bano Begum who belonged to Indore, Madhya Pradesh, was divorced by her husband in 1978.

She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. However, the Muslim politicians mounted a campaign for the verdict’s nullification. The Indian Muslims some of whom cited Qur’an to show that the judgment was in conflict with Islamic law. It triggered controversy about the extent of having different civil codes for different religions in India. This case caused the Congress government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of Iddah in Islamic law).

However, in the later judgements including the Daniel Latifi case and Shamima Farooqui v. Shahid Khan, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified.

Only for those who wish to know more about this case:

Background

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14 years, Khan took a younger woman as second wife and after years of living with both wives, he divorced Shah Bano, who was then aged 62 years. In April 1978, when Khan stopped giving her the ₹200 per month he had apparently promised,^[12] claiming that she had no means to support herself and her children, she filed a criminal suit at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her children. In November 1978 her husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total ₹5,400. In August 1979, the local court directed Khan to pay a sum of ₹25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to ₹179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law.

Opinion of Supreme Court

On 3 February 1981, the two-judge bench composed of Justice Murtaza Fazal Ali and A. Varadarajan who first heard the matter, in light of the earlier decisions of the court which had held that section 125 of the Code applies to Muslims also, referred to Khan’s appeal to a larger Bench. Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as an intervenor. The matter was then heard by a five-judge bench composed of Chief Justice Chandrachud, Rangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S. Venkataramiah. On 23 April 1985, Supreme Court in a unanimous decision dismissed the appeal and confirmed the judgment of the High Court.

Supreme Court concluded that “there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.” After referring to the Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Shah Bano approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of the Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.

The Court also regretted that article 44 of the Constitution of India in relation to bringing of Uniform Civil Code in India remained a dead letter and held that a common civil code will help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies.

Movement against the judgment

The Shah Bano judgment, as claimed, became the center of raging controversy, with the press turning it into a major national issue. The Shah Bano judgment elicited a protest from many sections of Muslims who also took to the streets against what they saw, and what they were led to believe, was an attack on their religion and their right to their own religious personal laws. Muslims felt threatened by what they perceived as an encroachment on the Muslim Personal Law and protested loudly at the judgment. Their spokesmen were Sunni Barelvi leader Obaidullah Khan Azmi and Syed Kazi. At the forefront was the All India Muslim Personal Law Board, an organization formed in 1973 devoted to upholding what they saw as Sharia (Muslim Personal Law).

Dilution of the effect of the judgment

In the 1984 Indian general election, Indian National Congress had won an absolute majority in the Indian parliament. After the Shah Bano judgment, many leaders in the Indian National Congress suggested to the Prime Minister of India, Rajiv Gandhi that if the government did not enact a law in Parliament overturning the Supreme Court judgment, the Congress would face decimation in the polls ahead.

In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court’s judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. This was in stark contrast to Section 125 of the Code. The ‘liability’ of husband to pay the maintenance was thus restricted to the period of the iddat only.”

The “Statement of Objects and Reasons” of the act stated that “the Shah Bano decision had led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife and hence opportunity was therefore taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.”

Reactions to the act

The law received severe criticism from several sections of society. The Opposition called it another act of “appeasement” towards the minority community by the Indian National Congress. The All India Democratic Women’s Association (AIDWA) organised demonstrations of Muslim women against the move to deprive them of rights that they had hitherto shared with the Hindus.

The Bharatiya Janata Party regarded it as an ‘appeasement of the Muslim community and discriminatory to non-Muslim men and saw it as a “violation of the sanctity of the country’s highest court”. The ‘Muslim Women (Protection of Rights on Divorce) Act’ was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had access to under secular law. Makarand Paranjape sees the overruling of Supreme Court verdict in Shah Bano case which happened when the Congress party was in power, as one of the examples of the party’s pseudo-secular tactics which allowed “cynical manipulation of religion for political ends”. Lawyer and former law minister of India, Ram Jethmalani has termed the act as “retrogressive obscurantism for short-term minority populism”. Rajiv Gandhi’s colleague Arif Mohammad Khan who was an INC member and a minister in Gandhi’s cabinet resigned from the post and party in protest.

Critics of the Act point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by them. Hindu nationalists have repeatedly contended that a separate Muslim code is tantamount to preferential treatment and demanded a uniform civil code.

Later developments

The Act has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of ₹500 – an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common. However, it is seen that despite its unique feature of no ceiling on the quantum of maintenance, the Act is sparingly used because of the lack of its knowledge even among lawyers. The legal fraternity generally uses the CrPC provision while moving maintenance petitions, considering it handy.

The Shah Bano case had once again spurred the debate on the Uniform Civil Code in India. The Hindu Right led by parties like the Jan Sangh in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren’t sufficiently advanced. The pressure exerted by orthodox Muslims caused women’s organizations and secularists to cave in.

This case had long-term implications. The case became a milestone in Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts.

Challenge to the validity of the Act

The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union Of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case. The Supreme Court tried to maintain a balancing act, attempting to uphold Muslim women’s rights without addressing the constitutionality of gender and religious discrimination in personal law. Court reiterated the validity of the Shah Bano judgment. The Muslim Personal Law Board, an intervenor, questioned the authority of the court to interpret religious texts.

The Court concluded that the Act does not, in fact, preclude maintenance for divorced Muslim women and that Muslim men must pay spousal support until such time as the divorced wife remarries. However, the Court held that if the Act accorded Muslim divorcees unequal rights to spousal support compared with the provisions of the secular law under section 125 of the Criminal Procedure Code, then the law would, in fact, be unconstitutional. Further, the Supreme Court construed the statutory provision in such a manner that it does not fall foul of articles 14 and 15 of the Constitution of India. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of the word “within” and not “for”). It extends for the entire life of the divorced wife until she remarries.

So we came to know how The Parliament tried to dilute the decision but The Court upheld its verdict. This is a classical example of our Constitution providing for the Balancing the Powers of Parliament & Judiciary.

22. Emergency Provisions:

The Constitution of India contains special provisions for dealing with emergencies. During the period of an emergency, the powers of the President, actually of the PM and the Union Council of Ministers Cabinet increase tremendously. President can take all steps deemed essential for meeting an emergency. These are called emergency powers of the President. The Emergency transforms the political system from Federal (which exists during normal times) to Unitary.

The Constitution recognises three types of possible emergencies:

1. National Emergency (Article 352) an emergency resulting from war or external aggression or threat of external aggression against India or from armed rebellion within India or in any of its part;
2. State Emergency also know as President’s Rule or Constitutional Emergency in a State (Article 356) an emergency resulting from the failure of constitutional machinery in any state, or some states and
3. Financial Emergency (Article 360) an emergency resulting from a threat to the financial stability of India.

23. Special Provisions relating to Scheduled Castes and Scheduled Tribes:

With a view to protect the interests of people belonging to Scheduled Castes and Scheduled Tribes, the Constitution lays down certain special provisions. It provides for reservation of seats in the legislatures for the people belonging to Scheduled Castes and Scheduled Tribes. President can nominate in Lok Sabha not more than two members of the Anglo-Indian Community in case he is of the opinion that this community is not adequately represented in the House.

Reservation of some jobs for the people belonging to SCs, STs, and OBCs has also been in operation.

24. Provisions regarding Language:

The Constitution lays down special provisions for defining the Language of the Union, Regional Languages and Language of the Supreme Court and High Courts. It states that the official language of the Union shall be Hindi in Devnagri script. But along with this, it also provides for the continuance of English language. A state legislature can adopt the language of the province as its official language.

English continues to be the language of the Supreme Court and the High Courts. The Constitution gives a directive to the Union to develop Hindi and popularise its use. In its Eighth Schedule, the Constitution recognises 22 modern Indian Languages.

25. Independent Bodies or Constitutional Bodies:

These are the bodies that are mentioned in the constitution of India and so considered as independent and more powerful. Below given is there list:

Non-Constitutional Bodies or Extra constitutional Bodies:

Although the list of Non Constitutional Bodies is out of the perview of this chapter but looking at its need in various competitive examinations it is being given here.

These bodies aren’t defined in the Constitution of the country but are very important. The list given below enlists them.

26. Three-tier Government:

Orignian Constitution had provided for 2 tier Governance of Center and State as any other federal Constitution.

But,

In 1992, 73rd & 74th Constitutional Amendements brogught a new revolution by adding a third tier of Governance. This is unique in the world. No other constitution in the world provides for Local Governance.

The 73rd Amendment gave Constitutional recognition to the Panchayats (Rural Local Governments). Part IX of the Constitution provides for The Three Tier Systems of Panchayati Raj Institution. The system has three levels: Gram Panchayat (village level), Mandal Parishad or Block Samiti or Panchayat Samiti (block level), and Zila Parishad (district level).

Gram Panchayat is at the apex of the three tier system of Panchayati Raj.

The 74th Amendment gave Constitutional recognition to the Municipalities (Urban Local Governments). Part IX – A of the Constitution provides for three types of Municipalities in every state. They are:

• Nagar Panchayat for transitional urban areas
• Municipal Council for smaller urban areas
• Municipal Corporation for Larger Urban areas.

27. Co-operative Societies

The 97th Constitutional Amendment Act of 2011 relates to the cooperative societies working in India. It aims to overcome all the problems faced by these societies and bring about an efficient way to manage them. It aims at encouraging economic activities of cooperatives which in turn will help rural India progress. It gave a constitutional status and protection to cooperative societies.

The amendment introduced the following 3 changes in the Constitution:

1. It added Part IX – B for Cooperative Societies. (after IX – A mentioned above for Urban Local Governments)
2. It made the right to form a cooperative society a fundamental right (Article 19)
3. It included a new Directive Principle of State Policy for promoting them (Article 43-B)

CRITICISM OF THE CONSTITUTION – A review

The Constitution of India has been criticized on the following grounds:

1. A Borrowed Constitution

The critics opined that the Indian Constitution contains nothing new and original. They described it as a ‘borrowed constitution’ or a ‘bag of borrowings’ or a ‘hotch-potch constitution’ or a ‘patchwork’ of several documents of the world constitutions.

This criticism is unfair and illogical. This is because, the framers of the constitution made necessary modifications in the features borrowed from other constitutions for their suitability to the Indian conditions, at the same time avoiding their faults.

2. A Carbon Copy of the 1935 Act

The critics said that the framers of the constitution have included a large number of the provisions of the Government of India Act of 1935 into the Constitution of India. Hence, they called the constitution as a “Carbon Copy of the 1935 Act” or an “amended version of the 1935 Act”.

Dr. B. R. Ambedkar himself replied to it stating that for reproducing the good part of the same, I have no apologies. And that is right. If something is good should be avoided only to avoid being labeled as borrowed.

3. Un-Indian or Anti-Indian

According to the critics, the Indian Constitution is ‘un-Indian’ or ‘anti- Indian’ because it does not reflect the political traditions and the spirit of India.

It is true because the Indian Sanatan Tradition of Ruling the Society should have been imbibed. After all we are finding that even the west is leaning towards such principles.

4. An Un-Gandhian Constitution

According to the critics, the Indian Constitution is Un-Gandhian because it does not contain the philosophy and ideals of Mahatma Gandhi, the father of the Indian Nation. They opined that the Constitution should have been raised and built upon village panchayats and district panchayats.

73rd amendement of the Constitution has put an end to this criticism. If something remains the same may be included subsequently.

5. Elephantine Size

The critics stated that the Indian Constitution is too bulky and too detailed and contains some unnecessary elements.

In fact the Constituent Assembly did not want to leave any thing unwritten. For bringing in the consensus some avaoidable things would have been taken.

6. Paradise of the Lawyers

According to the critics, the Indian Constitution is too legalistic and very complicated. They opined that the legal language and phraseology adopted in the constitution makes it a complex document.

Although one of the members of the constituent assembly, Mr. P. R. Deshmukh wished that the constitution should be a vibrating, pulsating, and life-giving document. It would have been good to see such a document instead of the bulky document which naturally invites complexities. But what to do? Consensus too was required. Nowadays several outdated acts are being repealed. Maybe after cleaning them the Constitution may also be taken up.

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