Salient Features and Sources of the Indian Constitution

The Constitution of India, drafted between December 1946 and November 1949 and brought into force on 26 January 1950, was framed at a moment when its makers could survey the working of every major Constitution then in operation. They borrowed without apology, then refashioned the borrowed pieces to meet Indian conditions. The document that emerged is the longest written Constitution in the world, simultaneously federal and centralising, parliamentary and republican, rigid in its core and flexible at the edges. It also carries an unusually rich layer of administrative and social-policy detail that other Constitutions leave to ordinary legislation.

This chapter maps both halves. The first sets out the salient features that mark out the Constitution's distinctive design. The second traces each major borrowing back to its origin — the Government of India Act, 1935 supplying the structural skeleton, the United Kingdom the parliamentary skin, the United States the rights and review machinery, and seven other Constitutions filling in specific limbs. For the constitutional context that produced this document — the Regulating Act of 1773 to the Cabinet Mission Plan of 1946 — see the chapter on the historical background of the Indian Constitution.

A lengthy and detailed written document

India's Constitution is, by general agreement, the longest organic instrument now in force. It originally contained 395 Articles arranged under 22 Parts and 8 Schedules. After more than a hundred amendments, the count today is 441 Articles and 12 Schedules. The prolixity is deliberate, and five reasons explain it.

1. The Constitution organises both the Union and the States. Most federal Constitutions confine themselves to the Centre and leave the States to their own organic instruments; India did not, because the States that joined the Union in 1950 had no shared constitutional tradition and the framers wanted a single, uniform constitutional fabric over the whole territory.
2. Centre-State relations — legislative, administrative and financial — are spelt out in detail rather than left to skeletal heads, precisely because the framers expected disputes and wished to pre-empt them. The Seventh Schedule, with its three lists of subjects, is the most visible product of this choice.
3. Several conventions of the British Constitution — collective ministerial responsibility, parliamentary procedure, the relationship between the executive and the legislature — are written into the text rather than left as unwritten usages, because the country was emerging from foreign rule and lacked the long apprenticeship of self-government on which British conventions silently rest.
4. India's social diversity required detailed safeguards for minorities, Scheduled Castes, Scheduled Tribes and Backward Classes, together with an enforceable charter of fundamental rights.
5. The makers wished to commit the Indian state to a programme of social welfare; the Directive Principles of State Policy reflect that commitment in textual form.

Add to these the administrative detail on citizenship, official language, public services and elections — matters most Constitutions leave to ordinary legislation — and the length of the document explains itself. Even with all this detail, the framers consciously left room for conventions to grow around the relationship between the President and his Council of Ministers, the position of the Governor, the dissolution of the Lok Sabha and the operation of ministerial responsibility for the conduct of officials.

A blend of rigidity and flexibility

The Constitution is written and is the supreme law of the land. Any law made by Parliament or a State Legislature, and any executive action, that conflicts with it can be struck down. To that extent the document is rigid: it is amended not by ordinary legislation but by a special procedure under Article 368. But the rigidity is not uniform. Some provisions — for example, the creation of new States and the alteration of State boundaries — can be altered by a simple majority of the Houses; others require a special majority of two-thirds of the members present and voting; the most sensitive provisions (the federal core, the election of the President, the powers of the Supreme Court and the High Courts, and the lists in the Seventh Schedule) require, in addition, ratification by at least half the State Legislatures. The detail of that machinery, and the basic-structure limits on it, are taken up in the chapter on the Preamble and amendability.

A federal Constitution with a strong unitary bias

India has a federal structure: a dual polity, with a Union government and State governments operating in their assigned fields under a single written Constitution. The Constitution distributes legislative powers between the two levels through three lists in the Seventh Schedule, sets up an independent judiciary to police the boundaries, and writes into the text a procedure for resolving disputes between the two levels of government. No State is a creature of the Centre; each derives its powers from the Constitution itself, and the federal core of the Constitution can be amended only with the participation of at least half the State Legislatures.

What is unconventional is the deliberate tilt towards the Centre. The word "Federation" was avoided; the Drafting Committee chose "Union" to make two points clear — that Indian unity is not the product of an agreement between sovereign states, and that the constituent units have no right to secede. The Concurrent List is long. Residuary power lies with the Centre. Parliament can, in defined circumstances, legislate even in the exclusive State field. Emergency provisions can convert the federal structure into a near-unitary one. Governors are appointed by, and report to, the Union Executive. There is a single, unified All-India administrative service whose officers serve in the States but are recruited and disciplined at the Union level. There is one Election Commission for the whole country, one Comptroller and Auditor-General, one set of currency and customs laws, and a single integrated audit. The result is what scholars have variously called a quasi-federal Constitution, a unitary Constitution with subsidiary federal features, or a centralised federation. Whatever the label, federalism is now a basic feature; the Centre cannot, by amendment, abolish the federal principle itself. The detail is in the chapter on Centre-State legislative relations.

Parliamentary government on the Westminster model

At both the Union and State levels the Constitution establishes a parliamentary executive. The Council of Ministers, headed by the Prime Minister at the Centre and the Chief Minister in the States, is collectively responsible to the popular House — the Lok Sabha at the Centre and the Legislative Assembly in the States. The President and the Governor are constitutional heads who, by convention more than by text, act on ministerial advice; their formal powers are extensive but their personal discretion is, in normal times, narrow. The lower House is elected directly by the people on the basis of adult suffrage; the upper House represents the States and provides for continuity through staggered terms. Bills must pass both Houses, with the popular House dominant in financial matters; deadlocks between the two are resolved through a joint sitting at the Centre, an Australian device discussed below.

This is in marked contrast to the American presidential system, which rests on a strict separation of powers between the executive and the legislature; the Indian system rests on co-ordination and co-operation between the two. The framers rejected the presidential alternative because what India needed was a government responsible to the people on a continuous basis, not one elected for a fixed term and immune from removal mid-term. They were also conscious that India had grown accustomed to the parliamentary form during the working of the 1919 and 1935 Acts and that a sudden shift to the presidential model would have meant building democratic habits from scratch.

A secular state

India is a country of many religions, and the Constitution stands for a secular state. The word "secular" was inserted into the Preamble by the 42nd Amendment in 1976, but the concept was always implicit in the original text. There is no official religion of the Union or any State; no state-recognised church; no religious test for public office; only one electoral roll for all qualified voters; and a cluster of fundamental rights guaranteeing freedom of conscience, worship, religious profession, practice and propagation under Articles 25 to 28, with the further protection that no person may be compelled to pay taxes whose proceeds are used to support a particular religion, and that no religious instruction may be provided in any educational institution wholly maintained out of state funds.

The Supreme Court has more than once declared secularism a basic feature of the Constitution. Secularism in the Indian sense does not mean hostility to religion, but neutrality between religions and the protection of every citizen's right to follow his own faith without state interference, subject only to public order, morality, health and the regulation of secular activities associated with religion. The state is enjoined to treat all religions and religious sects equally; it cannot identify itself with, or favour, any particular faith. The principle is reinforced by the equality clauses of Articles 14 to 18, which forbid discrimination on the ground of religion in matters of access to public office, public places and state services.

Rights, Directive Principles and Duties

The substantive heart of the Constitution lies in the rights of the individual. Part III guarantees a charter of fundamental rights — equality, the freedoms of speech and association, freedoms of religion, protection against arbitrary arrest and detention, the right to life and personal liberty, cultural and educational rights of minorities, and a judicially enforceable right to constitutional remedies. The state may impose reasonable restrictions on these rights on grounds expressly mentioned in the Constitution itself; the courts test the reasonableness of those restrictions, and have over the decades expanded the content of several of the listed rights — most notably Article 21 — by creative interpretation, recognising as fundamental rights the right to a clean environment, the right to privacy, the right to legal aid and the right to a speedy trial.

Part IV contains the Directive Principles of State Policy. These are non-justiciable, but the Constitution declares them "fundamental in the governance of the country" and casts a duty on the state to apply them in lawmaking. They aspire to a welfare state: an equitable distribution of resources, a living wage, free and compulsory education, equal pay for equal work, environmental protection, the separation of the judiciary from the executive, the promotion of cottage industries and the protection of monuments of national importance. The Supreme Court has used the Directives, read with the Fundamental Rights, to derive enforceable guarantees such as the right to equal pay for equal work and the right of compassionate appointment in defined cases. Part IV-A, inserted by the 42nd Amendment, lists the Fundamental Duties of every citizen — a code that complements the rights and the directives without itself being directly enforceable.

An independent and integrated judiciary

The Constitution accords the judiciary a position of unusual prominence. The Supreme Court sits at the apex; the High Courts in each State sit below it; and a hierarchy of subordinate courts sits below them. Crucially — unlike the United States, which runs a federal court system parallel to State court systems — India operates a single, unified judicial pyramid. The same court interprets and applies Union law, State law and the Constitution. There is no jurisdictional competition between two parallel sets of courts. The Supreme Court enjoys an original, appellate and advisory jurisdiction; it is the general court of appeal from the High Courts, the ultimate arbiter in all constitutional matters, and can issue writs for the enforcement of fundamental rights under Article 32. The High Courts exercise an even broader writ jurisdiction under Article 226, which extends to the enforcement of fundamental rights and to "any other purpose" — a power conspicuously wider than that of the Supreme Court itself.

Independence is secured by structural devices: appointment of judges, security of tenure until a constitutionally fixed retirement age, removal only by a special procedure for proved misbehaviour or incapacity, salaries charged on the Consolidated Fund (and so not voted on by Parliament), and a constitutional bar on the discussion of judicial conduct in the Houses except on a motion for removal. Judicial review has been declared part of the basic structure, as developed in the chapter on the basic structure doctrine.

Single citizenship, adult suffrage and emergency provisions

India is a dual polity but has only one citizenship — the citizenship of India. There is no separate State citizenship of the kind that the United States Constitution recognises. The choice was conscious: a single citizenship reduces the risk that a State will discriminate in favour of its own residents in matters such as voting, public office or professional licences such as those of law and medicine. By and large, an Indian enjoys the same political and civil rights of citizenship throughout the country regardless of the State in which she resides. The Constitution also adopts adult suffrage — every citizen who has reached the age of eighteen has the right to vote in elections to the Lok Sabha and the State Legislative Assemblies, regardless of sex, literacy, property or income. The framers took this step in the teeth of the prediction that universal franchise was unsuited to a country with a large illiterate population; the experience of the elections held since has vindicated the choice. To supervise and conduct elections, the Constitution sets up an autonomous Election Commission insulated from executive control, with security of tenure for the Chief Election Commissioner.

The Constitution provides for three kinds of emergency — a national emergency on grounds of war, external aggression or armed rebellion (Article 352); a State emergency on the failure of constitutional machinery in a State, popularly called President's Rule (Article 356); and a financial emergency (Article 360). During the operation of any of these, the federal balance shifts sharply towards the Centre. Parliament can legislate on State subjects; the Union may direct the States on the manner in which executive power is to be exercised; and several fundamental rights — though not the rights under Articles 20 and 21 — may be suspended or curtailed, subject to the safeguards added by the 44th Amendment after the experience of the 1975-77 Emergency. Each Proclamation must be approved by both Houses of Parliament within fixed periods and is subject to periodic parliamentary review.

Sources: the Government of India Act, 1935

By far the largest single contributor was the Government of India Act, 1935, the constitutional statute under which India was governed in the decade before independence. The 1935 Act supplied not merely administrative details but, in many places, the verbatim language of the Constitution. The federal scheme — a Centre with enumerated powers, Provinces with enumerated powers, and a concurrent list — was lifted from the 1935 framework. The office of the Governor; the institution of provincial autonomy; the structure of the public services and the constitutional protection of their conditions of service; the Federal Court (whose jurisdiction the Supreme Court inherited and expanded); the emergency provisions in skeletal form; the framework for distribution of revenues between the Centre and the Provinces; and large portions of the administrative machinery — all were carried over, with adaptations. To that extent the Indian Constitution is a continuation of, not a rupture from, the 1935 architecture.

Sources: the United Kingdom and the United States

From Britain came the parliamentary system itself — a Cabinet headed by a Prime Minister, collectively responsible to the popular House. With the parliamentary system came its conventions: collective ministerial responsibility, individual ministerial responsibility, and the position of the constitutional head as a dignified figure who acts on ministerial advice. The rule of law in its Diceyan form — the absence of arbitrary power, equality before the law, the protection of liberties through the ordinary courts — is a British inheritance that the Constitution embeds in Article 14 and the chapter on Fundamental Rights. The institution of single citizenship; the bicameral legislature on the Lords-Commons model with a popular House and an indirectly chosen second chamber; the law-making procedure with its three readings; the office of the Speaker as the impartial presiding officer; and the system of prerogative writs — mandamus, certiorari, prohibition, quo warranto and habeas corpus — for controlling administrative action are British in origin.

From the American Constitution came the chapter on Fundamental Rights itself, modelled on the Bill of Rights but cast in much greater detail. The doctrine of judicial review, by which the courts test legislation against the Constitution, is American in conception, although the Indian text is more explicit than the American (which derives the doctrine from Marbury v Madison rather than from text). The independence of the judiciary; the procedure for impeachment of the President; the office of the Vice-President as the ex officio chairman of the upper House; the procedure for the removal of judges by an address of both Houses; the institution of a written, supreme Constitution; and the inspiration for the Preamble's opening words "We, the people" — each is an American borrowing.

Sources: Ireland, Canada, Australia

The Directive Principles of State Policy in Part IV are taken from the Irish Constitution of 1937. The Irish model offered the framers a way to commit the Indian state to social and economic objectives without making those objectives directly enforceable in court — thus avoiding the impossible task of judicial implementation while preserving the moral and political force of the directives. The presidential election method (an electoral college consisting of elected members of Parliament and the State Legislative Assemblies, with weighted votes to balance the population of the States against the strength of the Union legislature) and the nomination of members to the Rajya Sabha for distinguished contribution in literature, art, science and social service also draw on Irish practice.

The choice of a centralising federal model is Canadian. The Canadian Constitution Act of 1867 vested residuary powers in the federal government rather than the provinces (the reverse of the American pattern), and the Indian framers followed suit. The use of the word "Union" rather than "Federation", the appointment of provincial Governors by the federal Executive rather than by election, and the institution of advisory jurisdiction in the Supreme Court are Canadian inheritances. From the Commonwealth of Australia Constitution Act, 1900 came the device of a Concurrent List — Australia and India are the two great federal systems that use the technique. The constitutional guarantee of freedom of trade, commerce and intercourse throughout the territory of the Union (Article 301 et seq.) is fashioned on the Australian Section 92, although the Indian provision is structured differently and admits of a wider range of regulatory exceptions. The mechanism of a joint sitting of both Houses to resolve a deadlock over an ordinary Bill is also Australian. For the operational detail on legislative power, see the chapter on the distribution of legislative powers; for the supplementary tables that the constitutional text repeatedly refers to, see the chapter on the Schedules to the Constitution.

Sources: Germany, South Africa, USSR and Japan

The structural skeleton of the emergency provisions in Part XVIII — the suspension of fundamental rights during a Proclamation of Emergency, the centralisation of legislative power during the emergency — is borrowed from the Weimar Constitution of 1919. The framers took the structural idea but heavily reshaped it; the parliamentary safeguards around the Indian provisions, the requirement that each Proclamation be approved by both Houses within stipulated periods, and the post-44th-Amendment limits on the suspension of rights are designed to prevent the kind of misuse that brought the Weimar Republic to an end.

The procedure for amendment of the Constitution under Article 368 — a special majority in each House, plus ratification by half the States for amendments affecting the federal structure — is drawn in part from the South African Constitution then in force. The Fundamental Duties in Part IV-A and the idea of a planning programme, expressed in India through the Five-Year Plans operated by the erstwhile Planning Commission, are taken from the Constitution of the Soviet Union. The expression "procedure established by law" in Article 21, which the framers preferred over the American "due process of law" precisely because they wanted to confine the courts to procedural review rather than open-ended substantive scrutiny of the wisdom of legislation, is drawn from the Constitution of Japan. For a fuller index of the chapter's neighbours and the rest of the syllabus, see the Constitution of India notes hub.

Frequently asked questions

Why is the Indian Constitution called the longest in the world?

The Indian Constitution originally contained 395 Articles in 22 Parts and 8 Schedules; today it carries 441 Articles and 12 Schedules. Five reasons explain the length: it organises both the Union and the States; it spells out Centre-State relations in detail rather than leaving them to skeletal heads; it writes British constitutional conventions into text rather than leaving them unwritten; it provides detailed safeguards for minorities, Scheduled Castes and Backward Classes; and it commits the State to a programme of social welfare through the Directive Principles. Administrative detail on citizenship, services and elections completes the picture.

Is India a federal country or a unitary one?

India is federal in structure but with a strong unitary bias. The Constitution distributes legislative powers between the Union and the States through three lists in the Seventh Schedule and protects the boundary judicially. Yet the Concurrent List is long, residuary power lies with the Centre, Governors are appointed by the Union, and Emergency provisions can transform the federal scheme into an almost unitary one. The Drafting Committee chose the word "Union" over "Federation" precisely to signal that the constituent States have no right to secede. Federalism has nonetheless been declared a basic feature of the Constitution.

Which features of the Constitution were borrowed from the Government of India Act, 1935?

The 1935 Act is the single largest source. It supplied the structural skeleton: the federal scheme of enumerated powers, the office of the Governor, the institution of provincial autonomy, the structure of the public services, the federal court (which became the Supreme Court), the emergency provisions in outline form, and very large portions of the administrative machinery. Many provisions were carried over with the verbatim language of the 1935 Act intact. To that extent the Constitution is a continuation of, not a rupture from, the 1935 framework.

What did India borrow from the United States Constitution?

From the United States the framers borrowed the chapter on Fundamental Rights (modelled on the Bill of Rights but more detailed), the doctrine of judicial review, the independence of the judiciary, the procedure for impeachment of the President, the office of the Vice-President as ex officio chairman of the upper House, the procedure for the removal of judges by an address of both Houses, and the very idea of a written and supreme Constitution. The Indian text is more explicit than the American on judicial review, since the American doctrine rests on Marbury v Madison rather than on textual command.

Why are the Directive Principles included if they cannot be enforced in court?

The Directive Principles in Part IV are not justiciable, but the Constitution declares them fundamental in the governance of the country and casts a duty on the State to apply them in lawmaking. The framers, drawing on the Irish Constitution of 1937, wanted to commit the Indian state to social and economic objectives — a living wage, free education, equitable distribution of resources, environmental protection — without making those objectives directly enforceable, since judicial implementation of socio-economic rights raises problems no court can solve. The Directives operate as moral and political directions to the legislature and executive.

From where did the Indian Constitution borrow its emergency provisions?

The structural skeleton of the emergency provisions in Part XVIII was borrowed from the Weimar Constitution of Germany (1919). The framers took the basic idea — a Proclamation that suspends parts of the federal arrangement and certain fundamental rights — but surrounded it with parliamentary safeguards designed to prevent the kind of misuse that ended the Weimar Republic. Each Proclamation must be approved by both Houses of Parliament within fixed periods; the post-44th-Amendment changes further limit the suspension of rights and require periodic parliamentary review.