BlogTHE 8 D’s; An Introduction to the Constitution of India

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THE 8 D’s; AN INTRODUCTION TO THE CONSTITUTION OF INDIA

PROF. V.S.  MALLAR

Chair Professor of Law

National Law School of India University, Bengaluru

 

 A  Constitution is a document of Public Policy and a repository of Rule of Law. Rule of Law is a fundamental principle imbibed in the Constitution. The Constitution Of India is a dynamic and vibrant document. At present, the Indian Constitution  has 395 articles and 12 schedules  with over a hundred amendments to it.  In order to appreciate the Constitution meaningfully we must have a macro-approach to re-study of the Constitution of India. No doubt, the Indian Constitution is a detailed document and this detailed document has got 8 D’s. They are detailed below:

1)DEFINING:-  the constitutional goals through its Preamble.

Honorable CJ Subbarao emphasized the importance of Preamble in Golaknath v. State of Punjab, saying “The preamble  in a nutshell, is  its ideals and its aspirations” Also held imperatively  In Berubari Union case the Supreme Court held “The preamble is the Key to open the minds of the makers of the constitution” The constitution makers made it clear that constitution emanates from “ We the people of India” and not from any external or lesser source.

2)DENIAL of the power.

Art 13 is the article of denial of Power. Article 13 expressly lays down what otherwise would have been implied. The supremacy of the fundamental rights over any other ordinary law in the case of inconsistency between the two is expressly mentioned in Art 13(1) and 13 (2) of the Constitution, Protection against impairment of the guarantee of fundamental Rights is determined by the nature of the right , the interest of the aggrieved party and the degree of the harm resulting from the state action. The definition of the term law is inclusive rather than exhaustive. Law includes any ordinance, order, Bye-law, rule , regulation notification, custom or usage having in the territory of the force of law.In Keshavananda Bharathi’s case it was held by the Honorable supreme court that though amendment is not a law under art 13, that does not exempt it from being invalidated on the ground that by violating a fundamental right , it violates the basic structure of the constitution.

3)DIRECTIONS :-  The Directive Principles of State Policy is a socio- economic document which enumerate principles to promote the socio-economic welfare of the people of. According to Art 37, even though directive priniciples of state policy are not enforceable in a court of law, they are fundamental in the governance of the country and it shall be the duty of the Government to apply these principles in making laws.  The balancing Of DPSP and Fundamental Rights  have been successfully done by the Judiciary, thereby elevating the balance and harmony between DPSP and FRs as the basic structure of the Indian Constitution. (Minerva Mills v. Union of India AIR 1980 SC)

 

4)DECENTRALISATION:-  Decentralization  and Devolution of power  as provided for in parts IX and IXA of the Constitution is a process towards ushering in participatory democracy. Decentralization  signifies the devolution of powers and authority of governance of the Union Government and State Governments to the sub-state level organizations . Besides, State legislatures have to endow local governments (LGs) with powers, authority and responsibilities to function as institutions of self-government tasked to prepare and implement schemes “for economic development and social justice”. Schedule V and VI also provide for decentralization power.

 

5) DUTIES :- The Fundamental duties were added by 42nd amendment in the year 1976. They are usually found in Socialist Constitutions. Fundamental Duties are imposed on citizens of India alone. The implementations of Fundamental Duties can only be done if the appropriate legislature makes the law. Of course, courts may look into fundamental duties, for purpose of interpretation of fundamental rights and directive principles of state policy.

6)DESIGNATED CONSTITUTIONAL AUTHORITIES

  1. A) Comptroller and Auditor General of India:- CAG is appointed by the President of India. He has to ensure that the withdrawl from the Consolidated Fund are not made without adequate legal sanction The CAG has been performing an important role in ensuring receipt and utilization of all revenues and finances of the Union in accordance with the constitution and laws made under it.

B)ELECTION COMMISSION:-    The Election Commission  Of India is a designated Constitutional authority deriving its power from Art 324. Art.324 must be read in the light of constitutional scheme and the RPAs 1950 and 1951. Although it operates in the areas left unoccupied by the legislation, Art 324 is the reservoir of power through which the Election commission performs its constitutional duty of conducting free and fair elections with expedition.

  1. C) UNION PUBLIC SERVICE COMMISSION AND STATE PUBLIC SERVICE COMMISSION:- These constitutional authorities shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts, on the principle to be followed in making appointments and promotions and for transfers from one service to another and on all disciplinary matters affecting a person serving under government of India or government of a state in civil capacity etc.
  2. D) FINANCE COMMISSION:- The finance commission is endowed with the duty to make recommendations to the President on financial matters mentioned in Art 280(3).
  3. E) NATIONAL COMMISSION FOR SCHEDULED CASTE, NATIONAL COMMISSION FOR SCHEDULED TRIBES & NATIONAL COMMISSION FOR OTHER BACKWARD CLASSES:- They have the constitutional responsibility to investigate and monitor all matters relating to safeguards provided for scheduled castes, scheduled tribes and other backward classes under this constitution or under any other law or under any other orders of appropriate government and to evaluate the working of such safeguards meant for the protection, welfare, socio-economic development of the SC/ST/OBCs. (Art 338, 338(a) and 338 (b)).

8) DIVISION OF POWERS:- Indian Constitution is federal in nature. There is a division of legislative powers (Art 245-255), administrative powers (Art 256-263) and financial powers (Art 264- 293). Despite the fact that constitution of India is  federal in structure, there is a domination of the Centre over the States in legislative, financial and administrative powers. The concept of federalism embodied in the Indian Constitution is said to be sui generis.

 

7)DISTRIBUTION OF POWERS:-  The constitution of India recognizes the doctrine of the separation of powers. Consequently, there is distinct executive legislature and judiciary and at the state level too, there is separate and distinct executive legislature and judiciary. The separation of power assures to a great extent promotion of rule of law and absence of tyranny. The supreme court of India has opined that we have separation of functions rather than strict separation of powers. (R.J Kapoor v. State of Punjab 1955 SC)

In conclusion 8-Ds exemplifies the vision, and the mission for which constitution has been enacted, adopted and given to ourselves on 26th November, 1949 by the founding fathers of our constitution.

 

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