LBR Law College: Law College in Varanasi

I. Definition of the constitution: – 

A constitution is a basic design, which deals with the structure and powers of government. It also includes the rights and duties of citizens. The  constitution may be written (like US or India) or unwritten like UK , New Zealand or Israel.

Definition given by thinkers:-

  • Aristotle: – According to him, definition of constitution is the way by which all citizens or constituent parts of the state are organized in relation to each other.
  • Austin: – stated the definition of constitution as, “It fixes the structure of supreme government.”

To sum up we can say that:-

  • The constitution is the fundamental law of the land.
  • Constitution may be written or unwritten.
  • The constitution deals with the structure and power of government.
  • The constitution deals with the rights of citizens.
  • The constitution deals with the relationship between governments and people.
  • The constitution is the supreme law that must be followed.

Professor KC Wheare identifies the following classifications of constitution

  • Written and unwritten;
  • rigid and flexible (Ex of rigid is US Constitution : Between 1813 and 1913, only three amendments had been accepted; between 1913 and 1933 six amendments; and by 1951, only one further amendment. (Total Amendment in American Constitution till date is 27 as compared to Indian Constitution 105 amendments.*
  • supreme and subordinate;
  • federal and unitary
  • Separation of powers

II.Sources of Constitution

Main source is Government of India Act 1935

  • Federal legislature consisted of council of states which was permanent house and federal assembly which comprised of 250 from British India & 125 from princely states
  • Provisional autonomy

* Amendment process adopted from South Africa

S.NoCountriesBorrowed Features of Indian Constitution
1.AustraliaConcurrent list Freedom of trade, commerce and intercourse Joint-sitting of the two Houses of Parliament
2.CanadaFederation with a strong Centre Vesting of residuary powers in the Centre Appointment of state governors by the Centre Advisory jurisdiction of the Supreme Court
3.IrelandDirective Principles of State Policy Nomination of members to Rajya Sabha Method of election of the president
4.JapanProcedure Established by law
5.Soviet Union (USSR) (now, Russia)Fundamental duties Ideals of justice (social, economic and political) in the Preamble
6.UKParliamentary government Rule of Law Legislative procedure Single Citizenship Cabinet system Prerogative writs Parliamentary privileges Bicameralism
7.USFundamental rights Independence of judiciary Judicial review Impeachment of the president Removal of Supreme Court and High Court judges Post of vice-president
8.Germany (Weimar)Suspension of Fundamental Rights during emergency
9.South AfricaProcedure for amendment in the Indian Constitution Election of members of Rajya Sabha
10.FranceRepublic Ideals of liberty, equality and fraternity in the Preamble
III. Consitutional Conventions ( samvedhanik abhisamay)
The constitution has been composed in such a manner that it consolidates within itself both written rules as well as certain uncodified rules. The written rule showcases the specific action that has to be taken in a particular situation; on the other hand, the uncodified rules come into force when there is no written law on that particular scenario. These uncodified rules have been over the period termed by various jurists and scholars as Constitutional Conventions. The analysis of constitutional convention has constantly been made on a presumption of its existence in the constitution. These conventions often fall within the realm of rules of political practice and are observed as binding by those to whom they apply.
The Constitutional Conventions mostly come into play while regulating relation between executive and legislature.
Examples of applying constitutional conventions
Ø Hung Lok Sabha Situation: There may arise a state of hung Lok Sabha where neither party acquires majority. In such a situation, it is upon the President to decide which leader will be in a position to grasp such majority support. This very area and power of the President fall under the domain of constitutional convention. Presently is a settled convention that it is not always the leader of a single largest party who will be called to be the leader of the majority in the house. The President will call that person who can command the majority whether or not he is the leader of the single largest party.
Ø Under conditions where the Prime Minister died in office or resigns, it is the President who will exercise his discretion and judgment while making the decision. Plus there may be circumstances where the party is without a recognized leader or where two parties can form a government, in these cases it is the President who will explore the possibility of identifying a person who can guide those two parties and can call for support of the Lok Sabha. Thus, at these points President will consider conventions regarding appointment procedure.
Ø Most Important: The constitutional conventions are not enforceable by the courts as they are not laws or rules written in any legislation of the country.

IV. Salient Features of Constitution

Indian constitution, one of the utmost admired constitutions in the world was enacted after ‘ransacking’ all the known constitutions of the world at that time. This constitution that we have enacted has stood the test of times. Though provisions were borrowed from other constitutions, the constitution of India has several salient features that distinguish it from constitution of other countries

Some of its salient features are discussed below:

Lengthiest written constitution

  • Constitution can be classified into written and lengthiest constitution such as that of America or unwritten constitution such as that UK.
  • It is comprehensive, elaborate and a detailed document
  • The factors that have contributed to this phenomenon are: geographical factors (vastness of country and diversity), Historical factors (Influence of GoI, 1935), Single constitution for both centre and state and dominance of legal luminaries

Drawn from various sources

  • It has borrowed most of its provisions from the constitution of various other countries as well as from the Government of India act, 1935. Ex: structural part from GoI, 1935, independence of judiciary from USA, Fundamental Rights from USA etc
  • Though it is borrowed, the Indian constitution-makers made sure the borrowed features were made suitable to Indian conditions. Ex: Though we borrowed cabinet form of governance from UK, the cabinet is not all-supreme as in the case of UK.

Preamble (prastavana) of the constitution

  • The Preamble consists of the ideals, objectives and basic principles of the Constitution.
  • The salient features of the Constitution have developed directly and indirectly from these objectives which flow from the Preamble
  • It asserts India to be a Sovereign Socialist Secular Democratic Republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation.
  • The Preamble is the nature of Indian state and the objectives it is committed to secure for the people.

Democratic system

  • The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights.
  • Free fair and regular elections are held for electing governments

India is a republic

  • The Preamble declares India to be 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 wields power for a fixed term of 5 years.
  • After every 5 years, the people of India indirectly elect their President.

Union of states

  • Article I of the Constitution declares, that “India that is Bharat is a Union of States.”

Fundamental Rights and duties:

  • The Constitution of India grants and guarantees Fundamental Rights to its citizens.
  • The constitution of India confirms the basic principle that every individual is permitted to enjoy certain basic rights and part III of the Constitution deals with those rights which are known as fundamental right.
  • The Six FR include- Right to Equality; Right to Freedom; Right Against Exploitation; Right to Freedom of Religion; Cultural and Educational Rights and Right to Constitutional Remedies (Art. 32).
  • The fundamental rights are justiciable and are not absolute {purn adhikhar nhi hai} (Come with certain restrictions). Reasonable constraints can be imposed keeping in view the security-requirements of the state.
  • A new part IV (A) after the Directive Principles of State Policy was combined in the constitution by the 42nd Amendment, 1976 for fundamental duties.

Directive Principles of State Policy:

  • A unique aspect of the Constitution is that it comprises of a chapter in the Directive Principles of State Policy.
  • These principles are in the nature of directives to the government to implement them to maintain social and economic democracy in the country.

Parliamentary System:

  • The Constituent Assembly decided to espouse Parliamentary form of government both for the Centre and the states.
  • In Indian parliamentary system, distinction is made between nominal and real executive head.
  • The Council of Ministers is responsible before the Lok Sabha, The lower house of union parliament. There are close relations between executive and legislature.

Federal structure of government:

  • A federal state is a state where a country is divided into smaller regions and the government is functioning at two levels
  • The Indian Constitution has envisaged a federal structure for India considering the geographical vastness and the diversity of languages, region, religions, castes, etc.
  • Written Constitution, supremacy of the Constitution, division of powers between Union and States, bicameral Legislature, independent Judiciary, etc. are the features of Indian federation.
  • Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with a unitary bias, or even as ‘a Unitarian federation.’

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.
  • All registered voters get the opportunity to vote in elections.

Single integrated State with Single Citizenship:

  • India is the single Independent and Sovereign integrated state.
  • All citizens enjoy a common uniform citizenship.
  • They are entitled to equal rights and freedoms, and equal protection of the state.

Integrated Judicial system

  • The Constitution 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.

Independent Judiciary

  • It is necessary to secure the philosophical foundations of the rule of law and democracy
  • Firstly, the Constitution makers created a separate Judiciary independent of Legislature and Executive.
  • Secondly, the Constitution has ensured complete independence of Judiciary in the matters of administration and finances.

Amending the Constitution of India:

  • Amending the Constitution of India is the procedure of making modifications to the nation’s fundamental law or supreme law.
  • The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India.
  • This procedure guarantees the sanctity of the Constitution of India and keeps a check on uninformed power of the Parliament of India.

Judicial Review:

  • The judiciary has significant position in Indian Constitution and it is also made independent of the legislature and the executive.
  • The Supreme Court of India stands at the peak of single integrated judicial system
  • It operates as defender of fundamental rights of Indian citizens and guardian of the Constitution.

Basic Structure doctrine:

  • The basic structure doctrine is an Indian judicial norm that the Constitution of India has certain basic features that cannot be changed or destroyed through amendments by the parliament.
  • The basic features of the Constitution have not been openly defined by the Judiciary.
  • At least, 20 features have been described as “basic” or “essential” by the Courts in numerous cases, and have been incorporated in the basic structure.
  • In Indira Gandhi v. Raj Narayan case and also in the Minerva Mills case, it was witnessed that the claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it.


  • In no other country of the world so many religions co-exist as in India. In view of such diversity the Constitution guarantees complete freedom of religion to all.
  • The citizens of our country are free to follow any religion and they enjoy equal rights without any distinction of caste, creed, religion or sex.
  • The State does not discriminate against anyone on the ground of his religion, nor can the State compel anybody to pay taxes for the support of any particular religion.
  • Everybody is equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
  • The Constitution regards religion as a private affair of individuals and prohibits the State from interfering with it. The Constitution also grants various cultural rights to minorities.

Independent bodies

  • Constitution has setup various independent bodies and vested them with powers to ensure the constitutional provisions. Ex: Election Commission, CAG, Finance Commission
  • These institutions have been provided with security of tenure, fixed service conditions etc to ensure that they are not susceptible to the whims of either the legislature or the executive.

Emergency provisions

  • Indian constitution contains elaborate provisions to deal with those challenges that pose a threat to the country’s security and unity (It will be discussed in detail in upcoming chapters)
  • National Emergency
  • Failure of constitutional machinery
  • Financial emergency

Three-tier government

  • Through 73rd and 74th amendment act, we have rural and urban local bodies as an additional constitutional tier of the government structure.
  • This section fulfills the dream of Gandhi ji to see a self-functioning villages in India

V. Rule of Law

All three branches of the government are subordinate i.e. the Judiciary, Legislature and the Executive are not only subordinate to the Constitution but are bound to act according to the provisions of the Constitution.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below.

  • ‘Equality of Law’ does not mean that the powers of private citizens are the same as the powers of public officials. e.g. a police officer has the power to arrest which the private citizen does not have.
  • The rule of law does not prevent certain classes of persons from being subject to special rules, for example, the armed forces are governed by military laws.
  • Ministers and other executive bodies are given wide discretionary powers by the statute.
  • Certain members of the society are governed by special rules in their professions like lawyers, doctors and nurses.

VI. Separation of powers

It is a doctrine in which the three organs of the government, the executive, the legislature and the judiciary have separate functions and powers, and one organ does not interfere in the functioning of the others.

Separation of powers is the mechanism of governance in three branches i.e., as specified above Legislative, Executive and Judiciary.

Three basic features of this division are-

  1. Each organ should have different persons in capacity
  2. One organ should not interfere in the functioning of the other organs, i.e., there shall be independency of powers.
  3. One organ should not exercise a function of another

Separation of power prevents misuse of power of accumulation of power in a few hands, separation of power safeguards the society from arbitrary and irrational power of the state.



Legislature is the law-making body; it has the authority to make laws for a political entity such as a country. Law enacted by the legislature is usually known as primary legislation. Legislature forms the base for the functioning of the other two organs.


Executive is the administrative head of the government which includes Prime/Chief Ministers and President/Governors. Executive is completely dependent on the powers the legislature grants it, and the actions of the executive may or may not be subject to judicial review.


The Judiciary is the watchdog of the democracy, as it guards the constitution, the judiciary comprises of the Supreme Court, the High Courts, District and other subordinate courts.


Concentration of power in one centre/authority, can lead to maladministration, corruption, nepotism and abuse of power.

Separation of powers helps in-

  1. Preventing autocracy(ektantra or nirankush)
  2. Create an  efficient administration
  3. Independency of power is maintained
  4. Prevents the legislature from enacting arbitrary or unconstitutional laws


Separation of powers is a part of the basic structure of the Constitution,

Let us take a look at some of the articles of the Constitution which suggest separation of powers-

Article 50

 Separation of judiciary from executive, this article suggests that the State shall take steps to separate the judiciary from the executive in the public services of the State.

Article 123 

The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211

These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361

The President and Governors enjoy immunity from court proceedings.


Kesavananda Bharati and ors v. State of Kerala

  1. He challenged the Kerala land reforms legislation in 1970, which imposed restrictions on the management of the religious property.
  2. The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
  3. A 13-judge Bench was set up by the Supreme Court, the biggest so far, to hear the case.

Basic structure doctrine or fundamental right case

The SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

I.R. Coelho v. State of Tamil Nadu 

The Supreme Court held that the doctrine of basic structure as propounded in the above-mentioned case and the Ninth schedule grant blanket protection to certain legislations from judicial review is violative of this doctrine.

 Ram Jawaya Kapoor V State of Punjab

The court held that the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.

 P Kannadasan V State of Tamil Nadu

The court held, “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations.

Golak Nath v. State of Punjab

It was observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the constitution.

Kartar Singh v. State of Punjab 

The judge stated, “it’s the function of the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.”


From this article it can be concluded that separation of power is important in order to prevent its accumulation in a few hands, separation of power also helps in preventing the misuse of power. However absolute separation of power cannot be given as a result there is an inter-relation among all the three branches.

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