The Constitution is a fundamental law of the land; it has special legal sanctity in the State[3] (Country or Nation). It lays down the provisions relating to the distribution of powers between three organs of the Government (Viz. The Executive, the Legislature, and the Judiciary). These powers are further divided into the Union (i.e., Central) and the Regional (i.e., State) Governments. The Constitution sets out the framework, principal functions, and limitations of the above three organs of the Government. It governs the operations of these organs. Therefore the Constitution is the public law[4] (i.e., the law concerning the Government).

2) ‘Constitutional Law’[5] means: –

Constitutional law is related to the State. “State[6]” is defined as “an independent political entity, occupying a definite territory, having its own population, Government and Sovereignty”. Although British India had definite territory, population and even Government, it lacked sovereignty.

The “State[7]” is incorporated through the social contract to perform two essential functions:-

i) to protect its citizens from external aggression and
ii) to maintain law and order within the State.

Since these functions are like ‘Police’, the State performing these functions is called ‘Police State; however, today’s State does not restrict itself to ‘police functions’ but looks after the welfare of the people; hence, it is described as a ‘Welfare State. Modern Welfare State has to take care of the health of its nationals (by establishing Civil Hospitals), provide food (through rationing shops), give education (through State-aided schools), provide justice to poor litigants (through free legal aid and pauper applications), provide jobs, help people in situations of natural calamities, etc. Thus, today’s ‘welfare State’ performs many-fold functions.

However, The State is a legal entity created by the fiction of law.[8] to perform the abovementioned functions. It has no brain, hands, or legs like a natural human. Hence, natural human beings are required as an agency for its functioning. However, all citizens in a State cannot combine and operate all the time to achieve the desired goals. Hence, few of us act as agents of the State by joining as Legislature, Executives, or Judicial officers.

The state’s powers are divided into three organs: legislative (i.e., Lawmaking), Executive (i.e., execution of law), and Judiciary (i.e., interpretation of law). In Monarchy, these powers were concentrated in one hand of the King. However, in a democracy, these powers are divided. Therefore, in democracy, Constitutional law is needed.

Constitutional law means those “rules, which set out the structure of the principal organs of the government (i.e., Legislative, Executive, and Judiciary) regulate their relationships with each other and with the citizens, and determine powers, functions, and limitations on these organs.”[9].

i) According to Salmond: –

“Constitutional Law is (as the name implies) a body of those legal rules which determine the Constitution of the State.[10].”

ii) According to Dicey: –

“Constitutional Law includes all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”.

Constitutional law consists of both legal rules and conventions (i.e., usages). Conventions play a more significant role in unwritten Constitutions (like England). However, legal rules play an essential role in written constitutions like those in India.

3) ‘Constitutionalism[11]‘:-

The term ‘Constitutionalism’ implies’ “supremacy of the Constitution.[12]“; it means that the Constitution should not merely confer powers on the various organs of the government but also restrict those powers. In other words, the term Constitution recognises the need for government in the State and insists on limiting governmental powers. Therefore, with the Constitution, there must be Constitutionalism like India and unlike Pakistan.

II] CLASSIFICATION OF CONSTITUTIONS:-

Constitutions may be classified as follows-

1) Written and Unwritten Constitution:-

The Constitution of a country may be written or unwritten. A written Constitution is written down in the form of a document, e.g., the Indian Constitution, the Constitution of the USA, Canada, Australia, etc. A Constitution is said to be unwritten when it is not embodied into one comprehensive document but carried through usages (conventions) and precedent of courts, E.g., the Constitution of the United Kingdom (i.e. England), Northern Ireland, etc. In the unwritten Constitution, the legislature enjoys sovereignty to make or repeal any law. In a State with an unwritten constitution, parliament gets supremacy, whereas in a country with a written constitution, the constitution is treated as Supreme.

3) Unitary and Federal Constitution[13]:-

The unitary constitution is one that sets up one central government (i.e., a union government), and all powers are vested in it. Either there are no provincial governments, or if there are provincial governments, they (i.e. State governments) act as subordinate to the Central (or Union) Government, E.g., the Constitution of Britain, Srilanka, Singapore, etc. In some countries, there are no provincial governments.

On the contrary, a Federal Constitution is one wherein there is a union and provinces (States), and the Constitution provides for the equal distribution of powers between central and State Governments. Thus, no government is subordinate to the other but is at an equal level and cooperates with each other, e.g., the Constitution of the U.S.A, Canada, Austria, Malaysia, Germany, India, etc.

4) Flexible or Rigid:-

A Constitution is said to be ‘flexible’ if it requires a simple majority for its amendments. A ‘simple majority of the members’ means “members who are present in the House and voting.”

A rigid Constitution requires a special, complicated, and more technical procedure for its amendment. For example, the Indian Constitution provides for the amendment of specific provisions. Under Art. 54, 55 (Election of President) requires acceptance by a majority of members in each House of the Parliament and 2/3^rd members present and voting. In addition, it requires ratification by not less than half of the State Legislatures before it is presented for the assent of the President.

III] MAKING UP OF THE INDIAN CONSTITUTION[14]:-

The demand for an independent India and the making of the Constitution for India were ancient. In 1922, Mahatma Gandhi and in 1938, Pandit Nehru demanded the independence of India and the making of the Indian Constitution (without outside interference) by the Constituent Assembly elected on the basis of adult franchise[15]. An irruption of the Second World War forced the British government to accept the demands of Indians. So, in 1942, the British government sent Sir. Stafford Cripps, popularly known as the ‘Cabinet Mission Plan’ (a member or cabinet) with a draft[16] proposal for framing the Constitution for India through the elected Constituent Assembly[17] of the Indian people. However, that Assembly was to act under the limitations Stated in the Cabinet Mission Plan. However, according to the plan, the Constituent Assembly came into existence in November 1946. The Provincial Assembly elected its members[18] by indirect election. The Assembly first met on 9^th Dec.1946. However, it was not a sovereign body because it was to work under the direction of the British Government. The Muslim League opposed the first sitting of the Assembly on the issue of a separate ‘Pakistan’. Eventually, the British Parliament passed the ‘Independence of India Act,’ making India independent. It divided India into communal lines[19] and made two independent dominions ‘India’ and ‘Pakistan’. The Constituent Assembly reassembled on 14^th August 1947 as a sovereign Constituent Assembly for the Dominion of India.

Dr Rajendra Prasad headed the Constituent Assembly as president; Dr B. R. Ambedkar headed the Drafting Committee as Chairman. The Constituent Assembly prepared the Constitution of India after thoroughly examining various other Constitutions, like the constitutions of America, England, Australia, Canada, etc. The Indian Constitution came into force on 26^th January 1950. Therefore, we have celebrated “Republic Day” since then.

IV] SALIENT FEATURES OF THE INDIAN CONSTITUTION[20]:-

Salient features of the Indian Constitution can be deduced as follows:

1) Lengthiest Constitution in the world[21]:-

The Indian Constitution is the longest and most detailed Constitution in the world. It currently contains 470 Articles and 12 schedules.

2) Democratic System of Government[22]:-

The Constitution of India declares in its preamble that ‘India is a Democratic State and its citizens have the right to elect the government of their choice, through voting. Accordingly, the citizens of India can elect their representatives to the State Legislature and Parliament, as well as at the local level like Grampanchayat, Municipal Corporations, etc.

3) Parliamentary Democracy and Cabinet form of government[23]–

The significant feature of the Indian Constitution is the Parliamentary Democracy and Cabinet form of government. In Parliamentary Democracy, the government gets power from the people’s will. The President of India is the Constitutional head.[24]The real executive power is vested in the Council of Ministers, headed by the Prime minister. The Council of Ministers is collectively responsible.[25] to the Lower House (i.e., the Lok Sabha). Therefore, such a Government is called a “responsible Government.”

4) Quasi Federal[26]:-

The country’s constitution may be Unitary or Federal. In a Unitary Constitution, the powers (i.e., Legislative, Executive, and Judicial) are centralised in the Union Government, and if Provincial Governments exist, they are subordinate to the central government. The Constitutions of Britain, Sri Lanka, Singapore, etc., are good examples of Unitary Constitutions.

In the Federal Constitution, powers are distributed among the Centre and State Governments, and both act as sovereign in their sphere. No Government is subordinate to the other, e.g., the Constitution of the U.S.A, Canada, Austria, Malaysia, Germany, etc. However, the Indian Constitution satisfies both Unitary and Federal features. Hence, it is termed “Quasi-Federal.”

5) Rigidity and Flexibility[27]:-

A rigid Constitution is one, the provisions of which cannot be amended easily. It requires a special method for amendment. The Flexible Constitution is one of the provisions that a simple legislative process can amend. Art. 368 of the Indian Constitution confers power on the Parliament to amend the provisions of the Constitution in three ways, namely- (1) by Simple Majority, (2) by Special Majority and (3) by Ratification by States. Hence, the Constitution of India is a unique blend of rigidity and flexibility.

6) Preamble[28]:-

The preamble of the Constitution declares India to be a sovereign, Socialist[29], Secular[30], Democratic Republic. The word ‘Sovereign’ denotes that India is fully independent and not subject to external authority. The word ‘Socialist’ denotes a form of state ownership of the means of production and distribution. The term ‘Secularism’ means “a state, which has no religion of its own as recognised religion of the state, i.e., the state treats all religions equally; it does not sponsor any religion. Finally, the term ‘Republic’ signifies that the citizens of the State elect the Chief Executive Head by voting.

7) Fundamental Rights[31]:-

Part III of the Indian Constitution consists of Art.12 to 35. These articles provide for fundamental rights. “Fundamental rights” are the basic human rights and freedoms essential for the survival of a human being. These are also called “inalienable rights[32]” among these rights, Art 14 (Equality), Art. 19 (Right to Freedom), and Art. 21 (Right to life and personal liberty) are of immense importance.

8) Directive Principles[33]:-

The Directive Principles of State Policy (in Part IV from Art.36 to 51) of the Indian Constitution sets out the aims and objectives to be achieved by the State in future. Thus, the Indian Constitution establishes the concept of a welfare State.

9) Fundamental Duties[34]:-

Part IV A, i.e. Art. 51A contains “fundamental duties.” It is a Code of ten Fundamental Duties for citizens. These duties require citizens to observe certain basic norms of democratic conduct and behaviour.

10) Adult Suffrage[35]:-

Under the Indian Constitution, every man and a woman above 18 years (adult suffrage) of age has the right to elect representatives for the legislature; it is called “Adult Suffrage”. Adopting the universal Adult Suffrage rule without any condition regarding sex, caste, property, taxation, etc., is a bold and successful experiment in India.

11) Independent Judiciary[36]:-

An independent and impartial judiciary with the power of judicial review has been established under the Constitution of India to protect fundamental rights and interpret the Constitution. The judiciary also determines the limits on the powers of the Centre and the States. According to Art. 124, the President appoints the Supreme Court and High Court judges. But they are not subject to any authority’s control. Further, Art. 32 and 226 confer on the Supreme Court and High Courts, respectively, the power of judicial review to examine the Constitutional validity of a law passed by the Parliament or State Legislatures.

12) Single Citizenship[37]:-

Though the Constitution of India is Federal and provides for dual polities (i.e., Centre and State), it provides for single citizenship of India, unlike the American Constitution, which provides for dual Citizenship, i.e., the citizenship of America as well as of a particular State.

*****

[1] ‘संविधान’/राज्यघटना/ घटना Constitution is studied in two parts taking into consideration the syllabus of some universities. The first part consists of chapters 1 to 16 and the second part consists of the remaining chapters.

(येथून पुढे काही महत्त्वाच्या इंग्रजी शब्दांचे मराठीत अर्थ दिलेले आहेत. त्याचा उद्देष विद्याथ्र्यांना विष य चांगल्या प्रकारे समजावा एवढाच मर्यादित आहे. मराठी अर्थ हे विशयाला धरुन केले असल्यामुळे ते शब्दकोषाप्रमाणे अगदी बरोबर असतीलच असे नाही. विद्याथ्र्यांनी अभ्यास करताना विविध मराठी व इंग्रजी शब्दकोष वापरावेत.)

[यहाँ से कुछ महत्वपूर्ण अंग्रेजी शब्दों के मराठी और हिंदी’ में उनके अर्थ दिए गए हैं। इसका उद्देश्य छात्रों को विषय को अच्छी तरह से समझाना है। सिर्फ इसलिए कि मराठी अर्थ विषय पर आधारित हैं, , जरूरी नहीं कि वे शब्दकोशों के रूप में सटीक हों। विद्यार्थियों को पढ़ते समय विभिन्न मराठी और अंग्रेजी शब्दकोशों का प्रयोग करना चाहिए। ]

[2] राज्यघटना म्हणजे काय?

[3] राष्ट्र

[4] प्रशासकीय कायदा

[5] घटनात्मक कायदा

[6] ‘राष्ट्र’ म्हणजे की ज्याला ‘स्वातंत्र राजकीय अस्तीत्व, विशिष्ठ भूप्रदेष, लोकसंख्या, स्वताचे सर्वभेोम सरकार असते’.

[7]‘राष्ट्र / देश’’ हा त्या देशातील लोकांनी अपापसात सामाजीक करार करून खालील दोन उददेशान साठी तयार केलेले असते (1) देशातील नागरीकांचे परकीय हमल्यापासुन संरक्षन करने (2) देशाअंतर्गत कायदा व सुव्यवस्था ठेवने.

[8] कायदयाप्रमाणे (गरज म्हणुन) कल्पीत अस्तित्व.

[9] “घटनेचा कायदा/ घटनात्मक कायदा” म्हणजे ‘‘असे नियम की जे राष्ट्राच्या कायदेमंडळ, प्रशासन, न्यायमंडळ या मुख्य अंगाची रचना ठरवितात, त्यांचे एकमेकाशी संबंध नियंत्रीत करतात व ज्यामधे हया मुख्य अंगाचे अधिकार, कार्य व त्यावरील मर्यादा निष्चित केलेल्या असतात”.

[10] “देशाची रचना/घटना ठरविना-या कायदेशीर नियमांचा संच’’ म्हणजे घटनात्मक कायदा

[11] घटनात्मक्ता

[12] घटनेचे श्रेष्ठत्व

[13] एकात्म आणी संघराज्यात्मक घटना

[14] घटनेचे तयार करने

[15] प्रौढ मतदार

[16] मसुदा

[17] घटना समिती

[18] प्रांतीय सभा / विधिमंडळ

[19] धार्मिक आधारावर

[20] भारतीय राज्यघटनेची वैषिष्ठे

[21] जगातील सर्वात विस्तृत राज्यघटना

[22] लोकशाही शासनपध्दती

[23] संसदीय लोकशाही आणि मंत्रीमंडळ स्वरूपात सरकार

[24] घटनात्मक प्रमुख

[25] एकत्रीत जबाबदारी.

[26] संघराज्य पध्दतीची राज्यघटना

[27] राज्यघटनेत दुरूस्ती करने सुलभ किव्हा कठीन

[28] प्रस्तावना

[29] Inserted by Constitution ( 42^nd Amendment ) Act, 1976.

[30] Supra. Note 1.

[31] मुलभुत अधिकार

[32] अहास्तांतरणीय

[33] मार्गदर्शक तत्वे

[34] Inserted by 42^nd Amendment Act. 1976. मुलभुत कर्तव्य

[35] प्रौढ मताधिकार

[36] स्वतंत्र न्यायव्यसस्था

[37] एकच नागरीकत्व