THE ARCHITECTURE OF THE CONSTITUTION

1. Basic features of the constitution

1. The Constitution is supposed to have a basic structure which cannot be altered. This was spelt out by the full bench of the Supreme Court in 1973 in the majority judgement in the Kesavananda Bharati case.
2. The rule of law, the objectives specified in the Preamble, judicial review, freedom and dignity of the individual, unity and integrity of the nation, the principle of equality, the concept of social and economic justice, the balance between Fundamental Rights and Directive Principles, the independence of judiciary, and effective access to justice.the 

2. Federal Structure or Unity

• The Indian Constitution does not fit into any rigid definition of federal or unitary.
• Interestingly, the concept of co-operative federalism was re-introduced into the political vocabulary by P. Chidambaram, when he was the Finance Minister in the United Front government in 1996-98.
• Indian federalism has certain distinctive features. For example, unlike the US, where a person is a citizen of the US, as well as of the state in which he or she resides, in India there is only Indian citizenship. The Constitution has also tried to minimize conflict between the Union and the states by clearly specifying legislative powers of each.
• It contains three lists of subjects. The subjects listed in the Union List can only be legislated upon by the union parliament, the ones in the State List only by the state legislatures, and those in the Concurrent List come within the purview of both, but in case of conflict between Union and state legislation, the Union law will prevail.

3. Institutions of Governance

3.1. The President 

• The executive power is vested by the Constitution in the President of India but in the words of Ambedkar, he is a constitutional head who ‘occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the nation but does not rule the nation. The head of the Executive is in fact the prime minister at the head of the Council of Ministers which is responsible to parliament.
• India’s parliamentary form of government bears the closest resemblance to the British system, with the difference of course that India has no hereditary monarchy but an elected President as its symbolic head of state.

Constitutional provisions of the President

• Art 53 – Executive power of Union is with President
• Art 74 – Aid and advice of council of ministers shall be available.
• Art 75(3) – Collective responsibility of council of ministers to Lok Sabha.
• Art 78 – PM shall give information on laws, policies to President of India. President can call for any information from government. President can submit a minister’s decision to consideration of Council of Ministers.

Qualifications

•  He must be 35yrs of age,
• Citizen of India,
• Qualified to be a member of Lok Sabha, shall not hold office of Profit under any govt.

Powers of the President

Legislative Powers

• Assent to bills, Joint sitting, Summons, prorogues houses and dissolves LS
• Addresses the Parliament – after general election,
• Appoints Protem speaker, calls for election of speaker, Deputy speaker and Deputy Chairman.
• Nominates 12 to RS and 2 to LS.
• Decides on disqualification of MP’s under Art 102 and
• Representation of people’s act in consultation with EC.
• Introduces Money bills.

Financial Powers

• Money bills are introduced with prior recommendation of President of India.
• The President appoints Finance commission.
• He causes budget to be laid before the Parliament.
• For unforeseen expenditure he can make advance out of contingency fund of India.

Judicial Powers

• Appoints Judges of SC and HC’s
• He can ask for Advice to SC (Advisory Jurisdiction)
• Pardon powers – Art 72 (161 for Governor)
• Pardon – completely absolves conviction
• Commutation – Quality of conviction is changed.
• Remission: Period of sentence is changed and not the nature of conviction.
• Respite: lesser sentence due to special fact
• Reprieve: stay in the execution of sentence for a temporary Period.
• President only have pardoning power on death penalty, court Martial and crimes committed on union laws.

Veto Powers

• Absolute Veto: withhold for state bills, Private member bills.
• Suspensive Veto: The President can send a bill for reconsideration of parliament only once. Not available for Money bills and Amendment bills.
• Pocket Veto: no action.
• No Qualified Veto for the President of India.
• For a Money bills President can ratify or reject but cannot be returned.
• No Veto power on constitutional Amendment bills (24th AA).

The President is elected for five years, is eligible for re-election, and can be removed through impeachment for violation of the Constitution. He is elected by elected members of both houses of parliament and of state legislative assemblies by a method of proportional representation through single transferable vote. Each MP or MLA has a single transferable vote, with a value corresponding to the population represented by him.

3.2. Vice President

• If the President dies in office, or is unable to perform his duties because of absence, illness or any other cause, or is removed or resigns, the Vice-president is enjoined upon by Article 65 to act as the President.
• This has happened on two occasions when Presidents—Dr Zakir Hussain and Fakhruddin Ali Ahmed—died in office and Vice-Presidents V.V. Giri and B.D. Jatti had to step in.
• The main function of the Vice-President, who is elected for five years by both houses of parliament, but is not a member of any legislature, is to act as the chairperson of the Rajya Sabha.

3.3. The Council of Ministers and the Prime Minister

• The real executive power vests under the Constitution in the council of ministers headed by the prime minister. The President appoints as prime minister the leader of the party that has a majority in the Lok Sabha or, if no party has a clear majority, a person who has the confidence of the majority of the members of the Lok Sabha.
• Other ministers are selected by the prime minister and appointed by the President. Ministers may be appointed without being members of parliament, but they must become members of any one house either by election or nomination within six months.
• The Council of ministers is collectively responsible to the Lok Sabha and has to resign as soon as it loses the confidence of the Lok Sabha.
• Almost all the powers formally vested in the President are in fact exercised by the Prime Minister, who is the link between the President, the cabinet, and the parliament.
• The Constitution does not mention different categories of ministers such as cabinet ministers, ministers of state and deputy ministers, except in article 352 where the cabinet is defined as the council consisting of ministers of cabinet rank.
• The Constitution does not allow the possibility of breakdown of constitutional machinery and direct presidential rule at the centre as it does not in the states. There must always be a council of ministers. Even when a vote of no-Confidence is passed and the council of ministers resigns, they are asked by the president to continue till the new one is in place.

3.4. The Parliament

• The Indian parliament has two houses the upper house being called the Rajya Sabha or the Council of States and the lower house the Lok Sabha or the House of the People.
• The Rajya Sabha has 250 members, of whom 238 are elected by elected members of the state legislative assemblies or Vidhan Sabhas via a system of proportional representation by means of single transferable vote, while another 12 are nominated by the President, on the advice of the government, to represent different fields such as education, social work, media, sports, etc. Every two years, one-third of the members of the Rajya Sabha retire; but individual members’ terms are for six years, so that the Rajya Sabha is a permanent body. The Vice-President of India is the chairperson and a deputy chairperson is elected by Rajya Sabha members from amongst themselves.
• The maximum number of seats in the Lok Sabha is 552. Of these, 550 represent territorial constituencies, and two go to nominated members from the Anglo-Indian community. Members must be at least twenty-five years of age. The Lok Sabha is chaired by the speaker and in his absence by the deputy speaker, both of whom are elected by members from amongst themselves. By convention, the speaker’s post goes to the majority party and the deputy speaker’s to the Opposition.
• The parliament has extensive legislative powers and bills may be introduced in any house. To become law, bills must be passed by both houses, and then receive presidential assent. The President may, however, send the bills back to parliament or the government for reconsideration. If they are passed again, the President cannot withhold assent.
• Money-bills, however, must be introduced first in the Lok Sabha, and on the President’s recommendation. They go to the Rajya Sabha, and if not returned with suggestions in fourteen days, are taken as passed. Recommendations of the Rajya Sabha may or may not be accepted by the Lok Sabha in the case of money-bills.

3. 5. The Government in the State and in Union Territories

• The Constitution lays down that the system of government at the state level shall also be based on the parliamentary model with the Chief Minister and his Council of Ministers exercising effective executive power while being responsible to the state legislature.
• The governor is meant to be a constitutional head like the President but with the very important difference that if the constitutional machinery break down and President’s Rule under Article 356 is imposed, then the governor as the President’s representative becomes the effective executive and runs the state with the help of advisers appointed by the Union Government.
• All states have legislative assemblies, which consist of not more than 500 and not less than 60 members. A few states also have second chambers or legislative councils. States have exclusive right to legislate on items in the state list. They can also legislate on items in the concurrent list but if there is a law passed by the Union Parliament which is different from that passed by the state legislature, then the Union law stands.
• There are also seven areas known as Union Territories, which are directly administered by Lieutenant-Governors appointed by the President. These territories can also have a legislature and a council of ministers, as in the case of Delhi and Pondicherry but their powers are more restricted than that of their counterparts in the states.

3.6. Local Government

• The Constitution did not contain provisions for the exact form that local government institutions were to take, but the Directive Principles specifically laid down that the states should take steps to organize village panchayats and endow them to function as units of self-government (Article 40). This was to allow the states the flexibility to devise forms most suited to their needs.
• Central government had concentrated its efforts for local development on the Community Development programme, which took a block of about 100 villages as a unit for promoting developmental activities with the help of village level workers, social workers, agricultural experts, newly-appointed development officials, etc.
• A high-level committee chaired by Balwant Rai Mehta, a veteran Gandhian, was asked in 1956 to make recommendations for its improvement. The Mehta Committee diagnosed the lack of democratic local bodies with real powers as the major cause of the failure of Community Development program.
• The setting up of Panchayati Raj (PR) by instituting three levels of representative bodies. The gram panchayat at the village level was to be directly elected by all adult residents of the village, and the panchayat samiti at the block level and zilla parishad at the district level were to consist of members indirectly elected from the tier below as well as cooperative movement officials, parliamentarians and others co-opted to the body.
• A number of committees made extensive studies and gave valuable suggestions—the Asoka Mehta Committee, 1978, the G.V.K. Rao Committee, 1985, and the L.M. Shingvi Committee, 1986.
• A new initiative was taken under the leadership of Rajiv Gandhi in 1988, when a committee headed by P.K. Thungon recommended that Panchayati Raj bodies should be constitutionally recognized and the Constitution should have a provision to ensure timely and regular election to these bodies and their term should be five years.
• The 73^rd Amendment provides for an elaborate system of establishing panchayats as units of self-government. For the first time in the constitutional history of India, the constitution of panchayats, the duration of their term, their membership, the constitution of a Finance Commission to review their financial position is detailed. It also adds a new Schedule to the constitution, the Eleventh schedule, which lists 29 subjects, which are to be handled by the panchayats. With this amendment, Panchayati Raj institutions are as much a part of the structure of constitutional government in India as the Lok Sabha.

3.7. The Judiciary

• Articles 124-147 and 214-237 of the Constitution lay down the entire framework of the system of justice in India. The method of appointment, the years of service, qualifying conditions, powers of each court, size of the bench, pay and perquisites, and much more, all was specified in the Constitution.
• The Indian judicial system consists of a single hierarchy of courts with the Supreme Court at its apex. Before the Supreme Court came into being in January 1950, India had a Federal Court and further appeals lay with the Judicial Committee of the Privy Council in Britain. The jurisdiction of the Privy Council was abolished in October 1949 and the Federal Court was replaced by the Supreme Court of India in January 1950.
• The Supreme Court consists of a chief justice and twenty-five other judges (seven in 1950, gradually increased by 1986 to twenty-five) appointed by the President after consultation with such of the judges of the Supreme Court and the High Courts as may be thought necessary. They hold office till the age of sixty-five.
• The only way a Supreme Court judge can be removed from office is if each House of Parliament supported by a majority of the House as well as two-thirds of those present and voting pass a resolution in the same session and present an address to the President asking for removal on the ground of proven misbehaviour or incapacity Article 124(4)1.
• The High Courts in the states have powers over all the subordinate courts in their jurisdiction. Their powers to issue writs or orders is wider than that of the Supreme Court as it is not restricted to cases of violation of Fundamental Rights.
• Their mode of appointment is similar to that of Supreme Court judges. Just as the law declared by the Supreme Court is binding on all courts in India, a law declared by a High Court is binding on all courts of that state.
• A major problem is the enormous backlog of cases and it can often take ten or even twenty years for a case to be decided. Litigation is expensive and time-consuming; as a result common people hesitate to take recourse to the courts.

3.8. Administrative Services

• The Constitution in ‘Part XIV: Services under the Union and the States’ while laying down that Union and State legislation would detail the rules for recruitment and conditions of service for Union and State services respectively, simultaneously provided constitutional guarantees against arbitrary dismissal.
• The Constitution (Article 315) also ensures fairness in recruitment by providing for independent public service commissions (for the Union and for each state). The members of the commissions are appointed for a term of six years by the President or the governor and at least half must be civil servants with at least ten years’ service.
• The Commission are entrusted with the task of conducting examination for recruitment to the services and have to be consulted on all matters relating to the method of recruitment, appointment, promotion and transfer of as well as disciplinary action against civil servants.
• The Constitution mentions only two all-India services that were in existence at that time: the IAS and the Indian Police Service (IPS), but it provided for more by giving the power to the Rajya Sabha to resolve by a two-thirds majority to establish new all-India services.
• The Indian Forest services and the Indian Engineering services are two services set up under this constitutional provision. The All-India services have been a significant force for national integration, for typically half the cadre of each state must come from outside it.