philosophical constitutional framework of govt

7/30/2019 Philosophical Constitutional Framework of Govt.

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CHAPTER 2

PHILOSOPHICAL AND CONSTITUTIONAL

FRAMEWORK OF GOVERNMENT

SALIENT FEATURES AND VALUE

PREMISES:

The most significant influence on the nature, structure and functioning of Indian

Administration is that of the Indian constitution. The democratic context in which the

Indian administrative system functions is closely linked to the constitution.

The influence of the constitution on public administration is broadly of two types:

The formal influences that prescribe the configuration of the administrative system and

The informal which determine the role, responsibility and responsiveness of the

administrative system , the character of governance and the behaviour of administrators.

Thus constitutional framework of the country shows the authoritative system under which

the administrator has to function. It shows what an administrator is intended to be andintended to achieve.

And so the philosophy embodied in our constitution deeply influences the administrative

system.

The preamble of the Indian constitution provides a framework of ideals and values for

the Indian administration. It is expected of the administrative system , which is an integral

component of the executive branch of government , to facilitate the application of theideals of liberty, equality, justice, socialism and secularism in the governance of the

country. Not only need the governmental laws and politics reflect these interrelated ideals,

but functioning of the administrative system, including the attitudinal orientations and

behaviour of administrators, should manifest these ideals and values.

The fundamental rightsincorporated in the Indian constitute on prescribe the parameters

within which the administrative system is expected to function. The administrative system


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is entrusted with the legal as well as the moral responsibility of protecting and promoting

the fundamental rights of the people who are its clientele as well as its ultimate masters.

There is need to inculcate the positive values of empathy, sympathy, equity, justice,

secularism, rule-orientation, respect for law, etc, among the members of the bureaucracy

at all levels. Formal training can play a useful role in this regard.

FEATURES:

The Constitution of India has some distinct and unique features as compared to

other constitutions to the world. As Dr. B.R. Ambedkar, the Chairman of the Drafting

Committee puts it, the framers had tried to accumulate and accommodate the best features

of other constitutions, keeping in view the peculiar problems and needs of our country

Preamble

The Preamble, the preface to the constitution, describes the source nature, ideology,goals and objectives of the constitution. It describes India as a sovereign socialist, secular,

democratic republic and underlines the-national objective of social just: economic justice

and political justice as well as fraternity. It emphasises the dignity of the individual and

the unity and integrity of the nation. It declares that in India the people sovereign.

Longest written Constitution

Indian Constitution can be called the largest written constitution in the world

because of its contents. In its original form, it consisted of 395 Articles and 8 Schedules towhich additions have been made through subsequent amendments. At present it contains

450 Articles and 12 Schedules, and more than 94 amendments.

Factors responsible

The framers of the constitution borrowed provisions form several sources and

several other constitutions of the world.

They have followed and reproduced the Government of India Act 1935 in

providing matters of administrative detail.

It was necessary to make provisions for peculiar problems of India like scheduled

castes, Scheduled Tribes and backward regions.

Provisions were made for elaborate centre-state relations in all aspects of their

administrative and other activities.


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The size of the constitution became bulky, as provisions regarding the state

administration were also included.

A detail list of individual rights, directive principles of state policy and the details

of administration procedure were laid down to make the Constitution clear and

unambiguous for the ordinary citizen.

Establishment of a Welfare State

The Preamble to the Constitution, as modified by the Forty-second Amendment

Act, 1976 and the Directive Principles of State Policy aim at the establishment of a

Welfare State in India. Keeping in view the inherent spirit of the Constitution, the

successive governments at the Centre have been pursuing a policy of democraticsocialism. Nationalization of banks and general insurance, fixation of ceiling on urban and

rural lands and abolition of privy purses of the rulers of the erstwhile native States,

implementation of various poverty alleviation programs are some of the measures which

have been taken to remove gross inequalities of wealth and to usher in an era of social and

economic equality.

A Democratic Republic

India is a democratic republic. It means that sovereignty rests with the people ofIndia. They govern themselves through their representatives elected on the basis of

universal adult franchise. The President of India, the highest official of the state is elected

for a fixed term. Although, India is a sovereign republic, yet it continues to be a member

of the Commonwealth of Nations with the British Monarch as its head. Her membership

of the Commonwealth does not compromise her position as a sovereign republic. The

commonwealth is an association of free and independent nations. The British Monarch is

only a symbolic head of that association.

Secular State

A secular state is neither religious nor irreligious, or anti-religious. Rather it is quite

neutral in matters of religion. India being a land of many religions, the founding fathers of

the Constitution thought it proper to make it a secular state. India is a secular state,

because it makes no discrimination between individuals on the basis of religion. Neither it

encourages nor discourages any religion. On the contrary, right to freedom of religion is


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ensured in the Constitution and people belonging to any religious group have the right to

profess, practice or propagate any religion they like.

Popular Sovereignty

The constitution proclaims the sovereignty of the people in its opening words. The

preamble begins with the words, we the people of India, having solemnly resolved toconstitute India into a sovereign socialist secular democratic Republic. The idea is

reaffirmed in several places in the constitution, particularly in the chapter dealing with

elections. Article 326 declares that the election to the House of people and to the

Legislative Assembly of every state shall be on the basis of adult suffrage.

As a result, Government at the centre and in the states derives their authority from

the people who choose their representatives for parliament and the state legislatures of

regular intervals. Further, those who wield the executive power of the government are

responsible for the legislature and through them to the people. Thus, in the affairs of thestate, it is the will of the people that prevails ultimately and this is the principle of popular

sovereignty.

Single Citizenship

The Constitution of India recognises only single citizenship. In the United States,

there is provision of dual citizenship. In India, we are citizens of India only, not of the

respective states to which we belong. This provision would help in promoting unity and

integrity of the nation.

Parliamentary System of Government

India has adopted the Parliamentary system as found in Britain. In this system, the

executive is responsible to the legislature, and remains in power only as long and it enjoys

the confidence of the legislature. The president of India, who remains in office for five

years is the nominal, titular or constitutional head. The Union Council of Ministers with

the Prime Minister as its head is drawn from the legislature. It is collectively responsible

to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of

that house. The President, the nominal executive shall exercise his powers according tothe advice of the Union Council of Ministers, the real executive. In the states also, the

government is Parliamentary in nature.

Cabinet Government


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The Constitution establishes cabinet type of Government both of the centre and the

units. The most distinctive feature of a Cabinet system of government is the complete and

continuous responsibility of the executive to the legislature. The cabinet is composed of

the Prime Minister, who is the chief of the executive and his senior colleagues who share

the responsibility with him for the formulation and execution of the policies of the

Government.

Under the Cabinet system the Head of the cabinet occupies a position of great

dignity, but practically all authority nominally vested in him is exercised by the cabinet.

The unitary and collective responsibility of the cabinet is composed of the Prime Minister,

who is the keystone of the cabinet arch. The real merit of cabinet system is that the

executive being responsible to the legislature is always being watched.

Partly Rigid and Partly Flexible

The Constitution of India is neither purely rigid nor purely flexible. There is a

harmonious blend of rigidity and flexibility. Some parts of the Constitution can be

amended by the ordinary law-making process by Parliament.

Certain provisions can be amended, only when a Bill for that purpose is passed in

each house of Parliament by a majority of the total membership of that house and by a

majority of not less than two-third of the members of that house present and voting.

Then there are certain other provisions which can be amended by the second

method described above and are ratified by the legislatures of not less than one-half of thestates before being presented to the President for his assent.

It must also be noted that the power to initiate bills for amendment lies in

Parliament alone, and not in the state legislatures.

Pundit Nehru expressed in the Constituent Assembly, "While we want the

Constitution to be as solid and permanent as we can make it, there is no permanence in

Constitution. There should be certain flexibility. If you make anything rigid and

permanent, you stop the nations growth, the growth of a living, vital organic people."

A federal system with unitary Bias

The most remarkable achievement of the Indian constitution is to confer upon a

federal system the strength of a unitary Government Though normally the system of


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government is federal the constitution enables the federation to transform into unitary

state.

The constitution of India establishes a federal polity which has been created by

dividing the country into states and allocating them functions as specified in the

constitution. India has a written constitution which is rigid to a large extent. There is a

dual polity and division of powers between the centre and the states.

The Indian constitution has a unitary bias for instance, after distributing the

legislative powers in three lists residual subjects are left with the union. Even in matters in

the concurrent list, the union Government has the final say Parliament in India has a might

to change the boundaries of the state. The centre can at any time declare emergency in the

states. The Governors are appointed by the President.

Fundamental Rights

The constitution of India affirms the basic principle that every individual is entitled

to enjoy certain basic rights and part III of the Constitution deals with those rights which

are known as fundamental rights.

Originally there were seven categories of rights, but now they are six in number.

They are (i) Right to equality, (ii) Right to freedom, (iii) Right against exploitation, (iv)

Right to freedom of Religion, v) Cultural and Educational rights and vi) Right to

constitutional remedies. Right to property (Article-31) originally a fundamental right has

been omitted by the 44th Amendment Act. 1978. It is now a legal right.

These fundamental rights are justiciable and the individual can move the higher

judiciary, that is the Supreme Court or the High Courts, if there is an encroachment on any

of these rights. The right to move to the Supreme Court straight for the enforcement of

fundamental rights has been guaranteed under Article 32 (Right to Constitutional

Remedies). However, fundamental rights in India are not absolute. Reasonable restrictions

can be imposed keeping in view the security-requirements of the state.

Directive Principles of State Policy

These principles are in the nature of directives to the government to implement

them for establishing social and economic democracy in the country.

It embodies important principles like adequate means to livelihood, equal pay for

both men and women, distribution of wealth so as to subserve the common good, free and

compulsory primary education, right to work, public assistance in case of old age,


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unemployment, sickness and disablement, the organisation of village Panchayats, special

care to the economically back ward sections of the people etc. Most of these principles

could help in making India welfare state. Though not justiciable. These principles have

been stated a; "fundamental in the governance of the country".

Fundamental Duties

The 42nd Amendment Act introduced Fundamental duties to circumscribe the

fundamental rights even thought the duties as such cannot be judicially enforced. The

purpose of incorporating these duties in the Constitution is just to remind the people that

while enjoying their right as citizens, should also perform their duties for rights and duties

are correlative.

An Independent Judiciary

The judiciary occupies an important place in our Constitution and it is also madeindependent of the legislature and the executive. The Supreme Court of India stands at the

apex of single integrated judicial system. It acts as protector of fundamental rights of

Indian citizens and guardian of the Constitution. If any law passed by the legislature or

action taken by the executive contravenes the provisions of the Constitution, they can be

declared as null and void by the Supreme Court. Thus, it has the power of judicial review.

But judicial review in India constitutes a middle path between the American judicial

supremacy in one hand and British Parliamentary supremacy in the other.

Universal Franchise without communal Representation

The adoption of universal adult suffrage, without any qualification either of sex,

property, taxation or the like, is a bold experiment in India, having regard to the vast

extent of the country and its population, with on over whelming illiteracy. The suffrage in

India, it should be noted is wider than that in England or the United States.

Compromise between Judicial Review and Parliamentary sovereignty

Parliament in India is not as supreme as the British parliament. At the the same

time judiciary in India is not as supreme as in the United States of America which

recognize no limit on the scope of Judicial Review. The Indian constitution wonderfully

adopts the via media between the American system of judicial supremacy and the English

principle of Parliamentary Supremacy, by endowing the judiciary with the power of


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declaring a law as unconstitutional if it is beyond the competence of the legislature

according to the distribution of powers provided by the constitution, or if it is in

contravention of the fundamental rights guaranteed by the constitution, but at the same

time depriving the judiciary of any power of judicial review of the wisdom of legislative

policy. Thus, it has avoided impressions like due process and made fundamental rights

such as that of livery and property subject to regulation by the legislature.

Official Language

In a country like India, with diverse cultural traditions and languages, it is essential

to declare one language as the national language, symbolic of the unity of the different

regions of the country. The Constitution declares Hindi in Devanagari script as the official

language of the country. Besides, each State is authorised to adopt a regional language for

all or some of its official purposes. English has also been allowed to be used along with

other languages for official purposes.

Division of Powers

India is a federal state. Therefore, there is division of powers between the Central

and State Governments. The Constitution lists 97 subjects in the Union List. 66 subjects

are in the State List. 47 subjects are in the Concurrent List.

Special Provisions for Scheduled Castes and Tribes:

The Indian Constitution has some special provisions for the Scheduled Castes and

Tribes in public appointments and reservation of seats in educational institutions and the

Union and State Legislatures. These are meant to ensure the development and welfare of

the weaker sections of society and bring them to the Indian mainstream of life.

Self Government

The ideal of organizing village Panchayats as units of self government was

provided by the Constitutional makers under Article 40 of Part IV which receivedconstitutional legitimacy or status through the 73rd Amendment Act of Indian

Constitution.

The other aspect of the Local Self Government is the organization of the three-tier

Nagarpalika System, as provided by the 74th Constitutional Amendment Act of Indian


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Constitution. It provides power to the urban people to manage thier own affairs for better

development.

In final analysis, the Constitution of India appears to a unique construct

bearing testimony to the pious vision and infallible wisdom of its framers.


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PREAMBLE

Preamble is an introductory statement, stating the aims and objectives of the

constitution. Accordingly, the preamble to the Indian constitution spells out the basic

philosophy contained in the body of the Indian Constitution. The preamble is as follows:

"We the people of India, having solemnly resolved to constitute India into a sovereign,

socialist, secular, democratic republic and to secure to all its citizens

JUSTICE; social, economic and political,

LIBERTY; of thought, expression, belief, faith and worship.

EQUALITY of status and of opportunity and to promote among all its citizens;

FRATERNITY assuring the dignity of the individual and the unity and integrity of thenation.

In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt,

enact and give to ourselves this Constitution."

IMPORTANCE OF THE PREAMBLE

The wording of the Preamble highlights some of the fundamental values andguiding principles on which the Constitution of India is based. The Preamble serves as a

guiding light for the Constitution and judges interpret the Constitution in its light. In a

majority of decisions, the Supreme Court of India has ruled that neither it nor any of its

content is legally enforceable. The Preamble plays pivotal role when there is ambiguity in

provisions of any Article or interpretation becomes confusing. This is when the spirit of

the Preamble becomes the guiding factor. The Preamble is stem, root and source of the

constitution

The preamble serves the following points:-

1. It indicates the sources from where the constitution has come viz. the people of India.

2. It contains the enacting clause which brings into force the constitution.

3. It declares the freedoms which the people of India intended to secure it all citizens and

the basic type of government and polity which was to be established.


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Explanation of some of the important words in the Preamble

SOVEREIGN

The word sovereign means supreme or independent. India is internally andexternally sovereign - externally free from the control of any foreign power and internally,

it has a free government which is directly elected by the people and makes laws that

govern the people.

DEMOCRATIC

India is a democracy. The people of India elect their governments at all levels

(Union, State and local) by a system of universal adult franchise; popularly known as 'One

man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise

debarred by law, is entitled to vote. Every citizen enjoys this right without anydiscrimination on the basis of caste, creed, colour, sex, religion or education.

REPUBLIC

As opposed to a monarchy, in which the head of state is appointed on hereditary

basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity

in which the head of state is elected, directly or indirectly, for a fixed tenure. The

President of India is elected by an electoral college for a term of five years. The post of

the President of India is not hereditary. Every citizen of India is eligible to become thePresident of the country.

SOCIALIST

The word socialist was added to the Preamble by the 42nd amendment act of 1976,

during the Emergency. It implies social and economic equality. Social equality in this

context means the absence of discrimination on the grounds only of caste, colour, creed,

sex, religion, or language. Under social equality, everyone has equal status and

opportunities. Economic equality in this context means that the government will endeavor

to make the distribution of wealth more equal and provide a decent standard of living for

all. This is in effect emphasizing a commitment towards the formation of a welfare state.

India has adopted a mixed economy and the government has framed many laws to

achieve the aim.

SECULAR


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The word secular was inserted into the Preamble by the 42nd amendment act of

1976, during the Emergency. It implies equality of all religions and [religious tolerance].

India therefore does not have an official state religion. Every person has the right to

preach, practice and propagate any religion they choose. The government must not favor

or discriminate against any religion. It must treat all religions with equal respect. All

citizens, irrespective of their religious beliefs are equal in the eyes of law. No religiousinstruction is imparted in government or government-aided schools. Nevertheless, general

information about all established world religions is imparted as part of the course in

Sociology, without giving any importance to any one religion or the others. The content

presents the basic/fundamental information with regards to the fundamental beliefs, social

values and main practices and festivals of each established world religions. The Supreme

Court in S.R Bommai v. Union of India held that secularism was an integral part of the

basic structure of the constitution.

The Preamble proceeds further to define the objectives of the Indian Republic.

These objectives are: 'Justice', 'Liberty', 'Equality' and 'Fraternity'.

JUSTICE

Justice promises to give people what they are entitled to in terms of basic rights to

food, clothing, housing, participation in the decision-making and living with dignity as

human beings. The Preamble covers all these dimensions of justice social, economic and

political. Besides, the granting of political justice in the form of universal adult franchise

or the representative form of democracy.

LIBERTY

The term 'liberty' used in the Preamble is not merely a negative, but a positive

concept. It signifies not only the absence of any arbitrary restraint on the freedom of

individual action but also the creation of conditions which are essential for the

development of the personality of the individual.

EQUALITY

'Liberty' and 'Equality' are complementary. Equality does not mean that all human

beings are equal mentally and physically. It signifies equality of status, the status of free

individuals and availability of opportunity to everyone to develop his potential capacities.

FRATERNITY


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Finally, it is the spirit of brotherhood, that is emphasised by the use of the term

"fraternity" in the Preamble. India being a multilingual and multi-religious state, the unity

and integrity of the nation can be preserved only through a spirit of brotherhood that

pervades the entire country, among all its citizens, irrespective of their differences.

Preamble:-A Part of the Constitution or Not?

The vexed question whether the Preamble is a part of the Constitution or not was

dealt with in two leading cases on the subject:

1. Berubari case

2. Kesavananda Bharti case

On the answer to the primary question- whether the Preamble is a part of the

Constitution, would depend the resolution of the next question, which follows as a

corollary- whether the Preamble can be amended, if at all.

Berubari case of 1960 was the Presidential Reference Under Art. 143(1) of the

Constitution of India on the implementation of the Indo-Pak agreement relating to

Berubari union and exchange of enclaves which come up for consideration by a bench

consisting of eight judges headed by B.P.Sinha.

The holdings in Berubari Case has been succinctly summed up later by Shela

and Grover, JJ. as under:

1. A Preamble to the Constitution serves as a key to open the minds of the framers, and

shows the general purpose for which they made the several provisions in the Constitution;

2. The Preamble is not a part of our Constitution;

3. It is not a source of the several powers conferred on government under the provisions of

the Constitution;

4. Such powers embrace those expressly granted in the body of the Constitution and such

as may be implied from those granted;

5. What is true about the powers is equally true about the prohibitions and limitations;

6. The Preamble did not indicate the assumptions that the first part of the Preamble

postulates a very serious limitation on one of the very important attributes of sovereignty.


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The motion adopted by the Constituent Assembly stated in so many words that the

Preamble stands as a part of the Constitution. The error came to be corrected in

Kesavananda Bharti case where the majority specifically ruled that the Preamble was as

much a part of the constitution as any other provision therein.

Kesavanada Bharati Case vs State of Kerala of 1971 has created a history. For

the first time, a bench of 13 Judges assembled and sat in its original jurisdiction hearingthe writ petition. 13 Judges placed on record 11 separate opinions. It was held in this case:

a. that the Preamble to the Constitution of India is a part ofConstitution

b. that the Preamble is not a source of power nor a source of limitations

c. the Preamble has a significant role to play in the interpretation of statues, also in the

interpretation of provisions of the Constitution.

Parliament by 42nd Amendment Act, 1976 amended the preamble by introducing

the terms Secular, Socialist and also Unity and Integrity of the country

Moreover in Bommai case of 1993 regarding the dismissal of three BJP

Governments in MP, Rajasthan and Himachal Pradesh, the majority of nine Judges laid

down a new application of the Preamble under the Constitution, which is as follows:

1. The Preamble indicates the basic Structure of the Constitution

2. A Proclamation under Article 356(1) is open to judicial review on the ground of

violating the basic structure of the Constitution.

3. It follows that a proclamation under Article 356(1), which violates any of the basic

features, as summarized in the Preamble of the Constitution is liable to be struck down as

unconstitutional.

4. A further extension of this innovation is that a political party, which appeals to religion

in its election manifesto, acts in violation of the basic structure, and the President may

impose Presidents Rule on a report of the Governor that a party has issued such a

manifesto.

The Preamble of the Constitution of India is one of the best of its kind ever drafted.

Both in ideas and expression it is an unique one. It embodies the spirit of the constitution

to build up an independent nation which will ensure the triumph of justice, liberty,

equality and fraternity. One of the members of the Constituent Assembly (Pundit Thakur

Das Bhargav) rose to poetic heights when he said, "The Preamble is the most precious part


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of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a

jewel set in the Constitution."

FUNDAMENTAL RIGHTS

The fundamental rights embodied in part III of the constitution, guarantee to eachcitizens basic substantive and procedural protections against the state.

It has always been baffling problem for the constitution makers as to how to councillaw and liberty, authority and freedom.

If power is necessary for the maintenance of order in society the abuse of power by

those in authority is also likely. This likelyhood of misuse of power has been sought to be

minimised in modern constitution making by incorporation certain rights as fundamentalin the constitution of the country.

Enunciation of the Fundamental Rights is not a distinctive feature of the Indian

constitution, as these are found many Written constitution of most of the European Statesformed after World War I.

The French Declaration of Rights, the Bill of the right of the U.S. Constitution and

the universal Human Rights character, together with the lists of similar rights given in

other constitution; provided the necessary guidance to the framers of our constitution in

selecting a set of rights which could best suit the political conditions prevalent in India.

FEATURES OF FUNDAMENTAL RIGHTS

Most elaborate in world:

The chapter on Fundamental Rights in the constitution is the most elaborate anddetailed one.

It not only enumerates the Fundamental Rights guaranteed to the Indian citizen is a

comprehensive and detailed treatment of each right and no article included in this chapteris without any elaborate set of limitations and reservations.

Integral Part of the Constitutions:

Fundamental Rights are an integral part of the constitution and hence cannot be

=altered or taken away by ordinary legislation. These rights are fundamental in the sense

that any law passed by any legislature in the country would be declared hurt and void if itis derogatory to the rights guaranteed by the constitution.


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Negative and Positive Rights:

Fundamental Rights as embodied in our constitution can be divided into two broadcategories;

Those which impose certain restrictions of negative character on the state withoutconfirming special privileges on the citizens. e.g. Article 14 - 16(2), 18(1), 17, 20, 22(1)

There are positive rights which confer privileges on the people, e.g.; Article 16(1),19, 25, 29 (1), 30 (1), etc

All rights are justiciables:

Another feature of these rights is that these are justiciable. This means that if any of

these rights is violated, the individual affected is entitled to move the Supreme Court orHigh Court for the protection and enforcement of his rights.

The Supreme Court may declare a law passed by Parliament or a state legislature in

India or the orders issued by any executive authority as rull and void of these are found tobe inconsistent with the rights granted by the constitution. The judiciary is thus the jealousguardian of the Fundamental Rights guaranteed by the constitution.

Restrictive nature of rights:

The Indian constitution does not formulate fundamental rights in absolute terms.

Every right is permitted under certain limitations and reasonable restriction can be

imposed at any time in the larger interests of the community. In some cases, restrictionscan be imposed by the constitution itself.

Article 16provides for equality of opportunity for all citizens but the state has been

empowered to make reservations in appointments in favour of scheduled castes andscheduled tribes.

Article 19, for example, guarantees to all citizens freedom of speech and

expression. But while exercising this right, they are not to utter anything which may affectthe security of the state, public order or friendly relations with foreign states

Suspension of Rights:

During the operation of an emergency, the President may suspend to all or any of

the fundamental rights and may also suspend the right of the people to move the HighCourts and Supreme Court for the enforcement of the fundamental rights.

Citizens alone enjoy fundamental rights:


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Another important feature of our fundamental rights is that some of them are only

guaranteed to the citizens of India while the rights relating to protection of life, freedom ofreligion, right against exploitation are guaranteed to every person whether citizen or alien.

This means that our constitution draws a distinction between citizens and aliens inthe matter of enjoyment of fundamental rights.

No natural or unenumerated rights:

The chapter and fundamental rights is not based on the theory of natural rights.

'Natural' rights are said to belong to man by 'nature'. It is claimed that man possessed these

rights before state itself came existence 'Natural' rights accordingly, do not are theirvalidity to their enumeration in a constitution.

In this respect a significant difference may be noticed between the American

constitution and the constitution of India. The Indian constitution has left no scope forsuch unenumerated rights.

Fundamental Rights are amendable:

The fundamental rights can be amended but they cannot be abrogated because thatwill violate the basic structure of the constitution.

The most striking feature of the provisions of Part III of our constitution, writes D.

D. Basu, is that "they expressly seek to strike a balance between a written guarantee ofindividual rights and the collective interests of the community".


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DIRECTIVE PRINCIPLES OF STATE

POLICY

Part IV of the constitution (Articles 36-51) provides the Directive principles ofstate policy. It is an idealistic and philosophical chapter in the Indian Constitution, which

contains various aims and aspirations to be fulfilled by the State in distant future.

They provide the much-desired philosophy of the Constitution and give "an

Instrument of Instructions" to the Government to follow the specific policies. Underlying

idea behind the Directive Principles is that whichever party may possess the rein of

administration should implement these constitutional ideals.

They guide; the path which will lead the people of India to achieve the noble ideals

which the preamble of the constitution proclaims : Justice social, economic and political,liberty-Equality and fraternity.

While incorporating the chapter on Directive Principles, the framers of theConstitution were inspired by the Spanish and Irish constitutional practices.

CLASSIFICATION OF DIRECTIVE PRINCIPLES OF STATE

POLICY

Directive principles aiming at the establishment of a welfare state

A large number of Directive principles, however, aim at the establishment of a

welfare state in India committed to the realisation of the ideals proclaimed in the preambleof the constitution.

Article 38 provides that the state shall strive to promote the welfare of the people by

securing and protecting a social order in which justice-social economic and political-shallinform all the institutions of national life.

According to Article 39 the state shall direct its policy towards securing :

(a) adequate means of livelihood to all citizens;

(b) a proper distribution of the material resources of the community for the common good;

(c)the prevention of concentration of wealth to the common detriment;


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(d) equal pay for equal work for both man and women;

(e) protection of the strength and health of workers and avoiding circumstances whichforces citizens to enter evocations unsuited to their age or strength;

(f) protection of childhood and youth against exploitation or moral and materialabandonment.

Article 41 seeks within the limits of economic resources and capacity, to ensure the right

to work, to education and to public assistance in cases of unemployment; old age, sickness

and disablement and in other cases of undeserved want

Article 42 declares that the state shall make provision for securing "just, and humaneconditions of work and for maternity relief:

According to Article 43 the state shall endeavour to secure to all workers a living wage adecent standard of life, leisure and social and cultural opportunities for people

Article 46 lays upon the state the obligation to promote with special cave the educationaland economic interests of weaker sections of the people and, in particular, of the

scheduled castes and the scheduled tribes and to protect them from social in justice and allforms of exploitation.

Article 47 declares as a primary duty of the state to raise the level of nutrition and theimprovement of public health.

Directive relating to cultural and educational matters:Article 45 declares that the state shall endeavour to provide within a period of ten

years from the commencement of the constitution, for free and compulsory education for

all children until they complete the age of fourteen fears.

The protection of monuments and places or objects of artistic or historic interests

enumerated as an obligation of the state underArticle 49 has also an obvious bearing onculture.

Directive principles aiming to implement Gandhian principles:

(a) State shall organize village panchayats as units of self- Government. (Article

40)

(b) State shall promote with special care the educational and economic interests ofthe weaker sections of the people. (Article 45).

(c) State shall try to promote outage industries (Article 43)


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(d) State shall preserve and improve the breeds and prohibit the slaughter of cows,calves and other milks and draught cattle (Article 48)

(e) State shall try to secure the improvement of public health and the prohibition ofintoxicating drinks and drugs. (Article 47)

Directives relating to International peace and security:

Article 51 declares that the state shall, endeavour to

(a) promote international peace and security

(b) maintain just and honourable relations between nations

(c) the settlement of international disputes by arbitration.

Miscellaneous:(i) To secure a uniform civil code applicable to the entire country (Article 44)

(ii) To separate the judiciary from the executive (Article 50)

(iii) To organise agricultural and animal husbandry on scientific lines, etc. (Article

48)

The 42nd and 44th Amendment:By the 42nd Amendment, certain charges have been introduced in part IV adding

New Directives, to accentuate the socialistic bias of the constitution;

(i) Article 39A has been inserted to enjoin the state to provide 'free legal aid' to the

poor and to take other suitable steps to ensure equal justice to all, which is offered by thepreamble.

(ii) Article 43 A has been inserted in order to direct the state to ensure the

participation of workers in the management of industry and other undertakings". This is a

positive step in advancement of socialism is the sense of economic justice.

(iii) Article 48 A has been inserted in order to direct the state to protect andimprove the environment and to safeguard the forests and wild life of the country.

Difference between fundamental Rights and Directive Principles


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Negative Injunctions Vs. Positive Directions.

Where as the Fundamental rights are the negative obligations of the state and the

prohibitive in character, the directive principles are positive commands to the state and todo certain things.

The fundamental rights are injunctions to prohibit the Government from doing

certain things. The Directive principles are affirmative instructions of the Government todo certain things.

Justiciable Vs. Non-Justiciable:

The fundamental rights are mandatory and every state is under an obligation to

enforce them: the directive principles are declaratory and the state are not under an

obligation to enforce them, if the state do not take any action to executive the directive

principles.No legal action can be brought against DPSP in a court of law. But if any law of the

state violates the fundamental rights, a legal action can be maintained. In other words, the

fundamental rights are enforceable, while the Directive principles are not or it may be said

that the Directive principles represent no more than General directions or instructions orrecommendations to the legislative and executive authorities.

Fundamental Rights are superior to Directive principles:

In other words it means that in case of a conflict between the fundamental rightsand Directive principles the former will prevail over the latter.

In the case ofstate of Madras Vs. Champakam Dorairajan, the Supreme Court

held that "The Directive Principle of state policy which expressly are made unenforceable

by a court cannot override lute provisions of part ill which are expressly made enforceableby appropriate court.

It may be said that though the Directive principles are not enforceable, yet they

remain fundamental in the governance of country. The creation of Article 31C further

raise the Directive principles of state policy above the fundamental Rights.


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FUNDAMENTAL DUTIES

A duty is an obligation. A man is said to have a duty is any matter, when he is underan obligation to do or not to do something.

What is a right in regard to one's self is a duty in regard to others. They are two

aspects of the something. If one looks at them from one's own point, they are rights. If onelooks at them from the stand point of others, they are duties.

It has been rightly said that 'Duties' and Rights' are the two sides of the same coin.

They are co-relative. The two go hand in hand. It is necessary to remember that the

individual possesses and is able to exercise his rights only as a member of an organizedcommunity.

Relation between rights and duties: It is the imperative duty of a citizen to use his rights on such a way as contribute

to social richness.

The enjoyment of his rights by an individual enjoins on him the duty to let othersenjoy the same rights.

Since the state protects may rights, therefore, it is my duty to perform myobligations towards it.

The constitutions of most western states given prominent place to the rights of the

citizen but make no mention of his duties. This, for example, is the case with the

constitution of the U S A. Japan is perhaps, the only country which has adopted the

western model of liberal democracy and has also included a number of basic duties in its

constitution.

Following the example set by the U.S.S.R., the constitution of socialist states, onthe contrary, give equal importance to the fundamental rights and duties of their citizens.

The constitution of India did not incorporate any chapter of fundamental duties.Fundamental Rights which the citizens were given were incorporated in part III of theconstitution.

It was during the period of internal emergency declared in 1975 that need and

necessity of fundamental duties was felt and accordingly a committee under SardarSwaran Singh was appointed to make recommendations about fundamental duties.


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The committee emphasized the inclusion of a chapter on fundamental duties in the

constitution so that the people of India become quit conscious that in addition to rightsthey also had certain duties to perform as well.

The committee had also recommended that duty to pay taxes should also be

fundamental duty of the citizens. But these recommendations were not accepted by the

Congress Party.As a result of the 42nd amendment carried out in 1976, the Indian constitution has

incorporated a set of fundamental duties of citizens in a separate part added to chapter IV(Article 51-A).

The fundamental duties are:

(1) To abide by the constitution and respect the National flag and the National

Anthem;

(2) To Cherish and follow the noble ideas which inspired our national struggle forfreedom;

(3) To protect the sovereignty, unity and integrity of India;

(4) To defend the country;

(5) To promote the spirit of common brotherhood amongst all the people of India;

(6) To preserve the rich heritage of our composite culture;

(7) To protect and improve the natural environment;

(8) To develop the scientific temper and spirit of inquiry;

(9) To safeguard public property;

(10) To strive towards excellence in all spheres of individual and collective activity,so that the nation constantly rises to higher levels of Endeavour and achievement.

(11) to provide opportunities for education by the parent the guardian, to his child,or a ward between the age of 6-14 years as the case may be.

11th Fundamental duty was added by the 86th Constitutional Amendment Act,2002.


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NATURE OF INDIAN CONSTITUTION

It has been the matter of debate among the scholars that whether the constitution of

India is completely federal or unitary in nature. But actually Indian constitution contains

both features of a federal constitution and unitary constitution.

The members of the Constituent Assembly closely examined the federal

constitution of USA and USSR and the unitary constitution of UK. The distinct features of

Federal Constitution and Unitary Constitution are:

FEDERAL CONSTITUTION:

In a federal set up there is a two tier of Government with well assigned powers and

functions. In this system the central government and the governments of the units act

within a well defined sphere, co-ordinate and at the same time act independently. The

federal polity, in other words, provides a constitutional device for bringing unity in

diversity and for the achievement of common national goals.

A federal government exists when the powers of the government for a community

are divided substantially according to a principle that there is a single independent

authority for the whole area in respect of some matters and there are independent regional

authorities for other matters, each set of authorities being co-ordinate to and subordinate

to the others within its own sphere. USA, Switzerland, Australia, Canada etc are

federations.

A federal constitution has the following features:

Constitution should be a written one

Rigid procedure of amendment

Distribution of powers between state and centre

Supremacy of judiciary

UNITARY CONSTITUTION:

A unitary state is a sovereign state governed as one single unit, with one

constitutionally created legislature, and in which the central government is supreme and

any administrative divisions (sub national units) exercise only powers that the central

government chooses to delegate.


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The local governments work as administrative units of the central government.

Their powers and roles depend upon the wishes of the central government. The latter has

the competence to effect at will any change, territorial or otherwise in the system of local

governments. Britain, France, Italy, China, and many other countries are unitary states.

INDIAN CONSTITUTION: FEDERAL OR UNITARY

Indian Constitution is based on the western concept of a federal state. When Dr.

Ambedkar presented the Draft Constitution to the Constituent Assembly, he described the

Constitution proposed to be federal, even though the word used in Article 1 was Union

and the word federal was never mentioned in the Preamble or any other provision.

There was a fair consensus in the Assembly that in the view of the external conditions as

well as the vastness of the country and its diverse elements, a unitary system was not only

undesirable but also unworkable. India therefore was going to have a Federal Constitution.

This view was carried by the members till the end, notwithstanding further centralizing

elements introduced during the proceedings. After the Partition, the necessity of a strongcentre was imperative and going back to a unitary system of governance was not an

option.

FEDERAL FEATURES OF INDIAN CONSTITUTION

Supremacy of the Constitution:

The supremacy of the constitution means that both, the Union and the State

Governments, shall operate within the limits set by the Constitution. And both the uniongovernment and the central government derive their powers from the constitution.

Written Constitution:

The Constitution of India is a written constitution and is the most elaborate

Constitution of the world.

Rigid Constitution:

The procedure of amending the Constitution in a federal system is normally rigid.Indian Constitution provides that some amendments require a special majority. Such an

amendment has to be passed by majority of total members of each house of the Parliament

as well as by two-thirds majority of the members present and voting there in. However, in

addition to this process, some amendments must be approved by at least 50% of the states.

After this procedure the amendment is signed by the head of the state i.e; the President.


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Since in India important amendments can be amended through this procedure Hence,

Indian Constitution has been rightly called a rigid constitution.

Division of Powers:

In Indian constitution the powers of state and centre are clearly defined and there

are very clear limits of both the centre and the state for law making powers. Ourconstitution enumerates three lists, viz. the Union, the State and the Concurrent List. The

Union List consists of 97 subjects of national importance such as Defence, Railways, Post

and Telegraph, etc. The State List consists of 66 subjects of local interest such as Public

Health, Police etc. The Concurrent List has 47 subjects important to both the Union and

the State such as Electricity, Trade Union, Economic and Social Planning, etc.

Supremacy of the Judiciary:

Supremacy of judiciary is another very important feature of a federal state where

there is an independent judiciary to interpret the Constitution and to maintain its sanctity.

The Supreme Court of India has the original jurisdiction to settle disputes between the

Union and the States. It can declare a law as unconstitutional, if it contravenes any

provision of the Constitution.

UNITARY FEATURES OF INDIAN CONSTITUTION:

In spite of the fact that the Indian Constitution establishes a federal structure, it is

indeed very difficult to put the Indian Constitution in the category of a true federation.The following provision of Indian constitution makes it unitary

Union of States:

Article 1 of the Constitution describes India as a Union of States, which implies

two things: firstly, it is not the result of an agreement among the States and secondly, the

States have no freedom to secede or separate from the Union. Besides, the Constitution of

the Union and the States is a single framework from which neither can get out and within

which they must function. The federation is a union because it is indestructible and helpsto maintain the unity of the country.

Appointment of Governor:

Art 155 and 156 provide that the Governor, who is the constitutional head of a

State, is to be appointed by the President and stays only until the pleasure of the President


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The Centre may take over the administration of the State on the recommendations of the

Governor or otherwise. In other words, Governor is the agent of the Centre in the States.

The working of Indian federal system clearly reveals that the Governor has acted more as

centres representative than as the head of the State. This enables the Union government to

exercise control over the State administration.

Representation in the Legislature:

The equality of units in a federation is best guaranteed by their equal representation

in the Uppers House of the federal legislature (Parliament). However, this is not

applicable in case of Indian States. They have unequal representation in the Rajya Sabha.

Disturbances in the state:

In case of disturbances in any State or part thereof, the Union Government is

empowered to depute Central Force in the State or to the disturbed part of the State.

Unified Judiciary:

The federal principle envisages a dual system of Courts. But, in India, there is

unified Judiciary with the Supreme Court at the apex.

Power to make laws:

The Constitution of India empowered the central government to make laws on the

subjects in the state list. It is exercised only on the matters of national importance and that

too if the Rajya Sabha agrees with 2/3 majority. The constitution establishes a strong

Centre by assigning all-important subjects to the Centre as per the Union List. The State

Governments have very limited powers.

Power to form new states and to change existing boundaries:

Under Art 3, center can change the boundaries of existing states and can carve out

new states. This should be seen in the perspective of the historical situation at the time of

independence. At that time there were no independent states. There were only provinces

that were formed by the British based on administrative convenience. At that time States

were artificially created and a provision to alter the boundaries and to create new states

was kept so that appropriate changes could be made as per requirement.


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Emergency Provisions:

The President of India can declare three different types of emergency under article

352, article 356 and article 360 for an act of foreign aggression or internal armed

rebellion, failure of constitutional machinery in a state and financial emergency

respectively. During the operation of an emergency, the powers of the State Governments

are greatly curtailed and the Union Government becomes all in all.

In addition to these, all important appointments such as the Chief Election

Commissioner, the Comptroller and Auditor General are made by the Union Government.

Besides, there is single citizenship. There is no provision for separate Constitutions for the

states. The States cannot propose amendments to, the Constitution. As such amendments

can only be made by the Union Parliament. All India Services such as IAS and IPS have

been created which are kept under the control of the Union. In financial matters too, the

States depend upon the Union to a great extent. The States do not possess adequate

financial resources to meet their requirements. During Financial Emergency, the Center

exercises full control over the States finances.

There is a unique blend of federal and unitary features in the Indian

constitution. India is a country with vast cultural, regional, linguistic, religious diversity.

For efficient government of such a nation, federation is essential. However, to keep the

states together and to protect them during war or any kinds of aggression, there should be

a unitary government. Thus these unique needs have been very efficiently met by the

Constitution of the Union of India having federal characteristics.


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PARLIAMENTARY FORM OF

GOVERNMENT

Governments have been classified on the basis of relationship of the political

executive with the legislative branch. If the executive is answerable and responsible to the

legislature it is called Cabinet form of Government or Parliamentary form of government.

In such a system of government, there exists a very close relationship between the

executive and the legislature. England is the traditional home of Parliamentary democracy.

India follows the Parliamentary form of Government

The word 'Parliament' is derived from the French word, 'Parler' which means 'to

talk'. The term connotes a place where people sit and discuss national and international

problems and enact legislation for their country.

Characteristics of Parliamentary form of Government

Nominal head of the state :Under this form of government the head of the state is nominal or titular. The

person holding the post may have great stature but he does not exercise his power

independently although the administration of the state runs in his name and theoretically

all the power belong to him under the constitution. His powers are exercised by the

Council of Ministers headed by the Prime Minister. Thus there exists dual executive inthis system, the nominal and the real. The President in India or the king in England are the

symbols of nominal head of the executive where as the Prime Minister is the real head of

the executive.

Close collaboration between the Executive and the legislature In this system the executive and the legislature work in close cooperation. The

members of the Council of Minister are also members of the legislature. The President

Summons the legislature and gives his consent to the bills passed by the legislature to

make them Acts. The bills passed by the legislature are in fact drafted and initiated by the

Ministers. The President of India promulgates ordinance during the recess of thelegislature. The ordinance has all the force and effect of law.

Responsibility of the executiveThe executive in a Parliamentary system is responsible to the legislature for all its

actions. The ministers are answerable to the parliament and responsible to the Lok Sabha.

The Council of Minister remains in office as long as they enjoy the support and


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confidence of the Lok Sabha. The legislature has the right to seek detailed information

about the working of the government from the ministers, which they cannot refuse to

provide.

Collective Responsibility

The responsibility of the Council of Ministers has to be collective. As a general ruleevery important piece of departmental policy is taken to commit the whole cabinet.

Everyone in the Council of Ministers share the responsibility for the lapses of a single

minister. Besides this the principle offers no scope to individual ministers to differ from

the decisions taken in the Council of Ministers or cabinet in particular. In other words the

minister who does not agree to the decisions of the cabinet must tender his resignation, so

that he can oppose that on the floors of the legislature.

Political HomogeneityThe members of the Council of Ministers should belong to a single political party

and remain committed to a definite political ideology, to remain a homogenous body. The

presence of different political parties in the cabinet is not conducive to its harmonious

working because of conflicting political ideologies and programmes.

Leadership of Prime MinisterThe accepted norm of the parliamentary form of government is the leadership of the

Prime Minister. The process of forming the Council of Minister begins with the

appointment of the Prime Minister. The President appoints his nominees as ministers and

distributes portfolios among them on his recommendation. He can dismiss any minister

any time without assigning any reason. His resignation leads to the resignation of theCouncil of Minister as a whole automatically. After every cabinet meeting he meets the

President on behalf of the Council of Ministers to inform him of the decisions taken.


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CONSTITUTIONALISM

Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas,

attitudes, and patterns of behavior elaborating the principle that the authority of

government derives from and is limited by a body of fundamental law".

Constitutionalism is the idea, often associated with the political theories of John Locke

and the founders of the American republic and equated with the concept of rule of law

that government can and should be legally limited in its powers and that its authority

depends on its observing these limitations.

Constitutionalism subjects the officials who exercise governmental powers to the

limitations of a higher law. It proclaims the desirability of the rule of law as opposed to

rule by the arbitrary judgment of public officials.

A political organization is constitutional to the extent that it"contain[s] institutionalized mechanisms of power control for the protection of the

interests and liberties of the citizenry, including those that may be in the minority"

The central element of the concept of constitutionalism is that in political society

government officials are not free to do anything they please in any manner they choose;

they are bound to observe both the limitations on power and procedures which are set out

in the supreme , constitutional law of community.

It may therefore be said that the touchstone of constitutionalism is the concept oflimited government under the higher law.

The act of government and administration has to be performed within the restriction and

limitation placed by the constitution. That is government act are determined by the

constitutional jurisdiction. The authority of government is derived from and is limited by a

body of fundamental law that is constitution.

In more positive sense it may mean that the act of government must work to achieve

constitutional objectives, values and ideas such as accountability, transparency,

responsiveness, decentralization, protection of fundamental right , achieving directiveprinciples etc.

Thus it is about working within the framework of constitution and thus aims to establish

supremacy of constitution.

Constitutionalism is said to enrich the legitimacy of the public service by confirming to

constitutional goals.
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India is a democratic country with a written constitution. Rule of law is the basis for

governance of the country and all administrative structures are expected to follow it in

both letter and spirit. It is expected that constitutionalism is a natural corollary to

governance in India.

PRINCIPLE OF CONSTITUTIONALISM:

Constitutionalism recognizes the need government but insists upon limitation being placedupon governmental powers. Limited govt. is the central point of constitutionalism. It is the

anti-thesis of arbitrary powers.

The underlying difference between the Constitutionalism and Constitution is that a

Constitution ought not merely to confer powers on the various organs of the Government

but also seek to restrain those powers.

The essence of the principle of constitutionalism was explained in the case of S. S. Bola v.

B. D. Sardana5as:

A good and virtuous constitutionalism having moral foundation protects not only

fundamental freedoms but also creates a bridge between conflicting interests and becomes

a harbinger to the social needs and produced good legislators and good citizens. The

constitutional Courts as sentinel on the qui vive, therefore, function objectively and

dispassionately to correct imbalances and keep check on every wing of the State without

trespassing upon the field assigned or powers conferred upon the other wings and at the

same time maintain a delicate balance on even keel.

Constitutionalism vs. constitutional questions

The study of constitutions is not necessarily synonymous with the study of

constitutionalism. Although frequently conflated, there are crucial differences.

A discussion of this difference appears in legal historian Christian G. Fritz'sAmerican

Sovereigns: The People and America's Constitutional Tradition Before the Civil War,a

study of the early history of American constitutionalism. Fritz notes that an analyst could

approach the study of historic events focusing on issues that entailed "constitutional

questions" and that this differs from a focus that involves "questions of

constitutionalism." Constitutional questions involve the analyst in examining how the

constitution was interpreted and applied to distribute power and authority as the new

nation struggled with problems of war and peace, taxation and representation. However,

these political and constitutional controversies also posed questions of constitutionalism

how to identify the collective sovereign, what powers the sovereign possessed, and how

one recognized when that sovereign acted. Unlike constitutional questions, questions of

constitutionalism could not be answered by reference to given constitutional text or even
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judicial opinions. Rather, they were open-ended questions drawing upon competing views

Americans developed after Independence about the sovereignty of the people and the

ongoing role of the people to monitor the constitutional order that rested on their

sovereign authority.

Constitutionalism In India

In an ideal Constitution, the overall social objective is one that allows for state

intervention when it produces some net social benefit, without leaving any individuals

worse off than they were before the state acted.

This social objective is achieved by the limits prescribed on the government implies the

principle of constitutionalism meaning limited govt.

A written Constitution, independent judiciary with powers of judicial review, the doctrineof rule of law, free elections to legislature, accountable and transparent democratic

government, Fundamental Rights of the people, federalism, de-centralization of powers

are some of the principles and norms which promote Constitutionalism in a

country. Preamble to the Indian Constitution lays down principles for the promotion of

constitutionalism.

The constitution- makers had decided to incorporate Fundamental Rights in the

Constitution because of several reasons, such as, consciousness of the massive minority

problem in India, memories of the protracted struggle against the despotic British Rule;acknowledgement of the Gandhian ideals; the climate of international opinion and the

American experience.

But it can be seen from the past history that inclusion of Fundamental Rights under the

Indian Constitution was also a reasonable step towards the natural apprehension of any

such autocratic rule and arbitrariness in future and to prevent it. In other words, to limit

the government acts.

The courts are also playing a crucial role in guaranteeing these rights to the people besides

broadening them with changing circumstances and conditions and making them evenmore efficient for protection against any arbitrary act on the part of the govt. or any

individual.

This is what the principle of constitutionalism also calls for. Thus, it can very well be said

that Fundamental Rights are really an expression of constitutionalism in India.


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Usage

Constitutionalism has prescriptive and descriptive uses. Law professorGerhard

Caspercaptured this aspect of the term in noting that: "Constitutionalism has both

descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the

historical struggle for constitutional recognition of the people's right to 'consent' and

certain other rights, freedoms, and privileges. Used prescriptively its meaning

incorporates those features of government seen as the essential elements of the

Constitution."

Descriptive use:

One example of constitutionalism's descriptive use is law professor Bernard Schwartz's 5

volume compilation of sources seeking to trace the origins of the U.S. Bill of

Rights. Beginning with English antecedents going back to the Magna Carta (1215),

Schwartz explores the presence and development of ideas of individual freedoms andprivileges through colonial charters and legal understandings. Then, in carrying the story

forward, he identifies revolutionary declarations and constitutions, documents and judicial

decisions of the Confederation period and the formation of the federal Constitution.

Finally, he turns to the debates over the federal Constitution's ratification that ultimately

provided mounting pressure for a federal bill of rights. While hardly presenting a

"straight-line," the account illustrates the historical struggle to recognize and enshrine

constitutional rights and principles in a constitutional order.

Prescriptive use:

In contrast to describing what constitutions are, a prescriptive approach addresses what a

constitution should be. As presented by Canadian philosopherWil Waluchow,

constitutionalism embodies "the idea that government can and should be legally limited

in its powers, and that its authority depends on its observing these limitations. This idea

brings with it a host of vexing questions of interest not only to legal scholars, but to

anyone keen to explore the legal and philosophical foundations of the state." One example

of this prescriptive approach was the project of the National Municipal League to develop

a model state constitution.

Authority of government

Whether reflecting a descriptive or prescriptive focus, treatments of the concept of

constitutionalism all deal with the legitimacy of government. One recent assessment of

American constitutionalism, for example, notes that the idea of constitutionalism serves to

define what it is that "grants and guides the legitimate exercise of government authority."

Similarly, historian Gordon S. Wood described this American constitutionalism as
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"advanced thinking" on the nature of constitutions in which the constitution was

conceived to be "a 'set of fundamental rules by which even the supreme power of the state

shall be governed.'"Ultimately, American constitutionalism came to rest on the collective

sovereignty of the people - the source that legitimized American governments.

Criticism:

Constitutionalism has been the subject of criticism by numerous anarchist thinkers. Forexample, Murray Rothbard, who coined the term "anarcho-capitalism,"attacked

constitutionalism, arguing that constitutions are incapable of restraining governments and

do not protect the rights of citizens from their governments. Rothbard wrote that

it is true that, in the United States, at least, we have a constitution that imposes strict limits

on some powers of government. But, as we have discovered in the past century, no

constitution can interpret or enforce itself; it must be interpreted by men. And if the

ultimate power to interpret a constitution is given to the governments own Supreme

Court, then the inevitable tendency is for the Court to continue to place its imprimatur on

ever-broader powers for its own government. Furthermore, the highly touted checks andbalances and separation of powers in the American government are flimsy indeed,

since in the final analysis all of these divisions are part of the same government and are

governed by the same set of rulers.
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POLITICAL CULTURE

Political culture can be defined as the orientation of the citizens of a nation towards

politics, and their perceptions of political legitimacy and the traditions of political

practice and feeling expressed by individuals in the position of the elected offices that

allow for the nurture of a political society.

Dennis Kavanagh defines political culture as A shorthand expression to denote the set of

values within which the political system operates

According to A.R.Ball , apolitical culture is composed of attitude , values , emotions, and

belief of society that relate to political system and political issue.

Political scientist Sidney Verba , describes political culture as a system of empirical

beliefs, expressive symbols, and values, which defines the situation in which political

action takes place.

Types of political culture:

According to their level and type ofpolitical participation and the nature of people's

attitudes toward politics, Gabriel Almond and Sidney Verba outlined three pure types of

political culture:

Parochial - Where citizens are only remotely aware of the presence of centralgovernment, and live their lives near enough regardless of the decisions taken by the

state. Distant and unaware of political phenomena. He has neither knowledge or

interest in politics. In general congruent with a traditional political structure.

Subject - Where citizens are aware of central government, and are heavily subjected toits decisions with little scope for dissent. The individual is aware of politics, its actors

and institutions. It is affectively oriented towards politics, yet he is on the "downward

flow" side of the politics. In general congruent with a centralized authoritarian

structure.

Participant- Citizens are able to influence the government in various ways and theyare affected by it. The individual is oriented toward the system as a whole, to both the

political and administrative structures and processes (to both the input and output

aspects). In general congruent with a democratic political structure.

These three 'pure' types of political culture can combine to create the 'civic culture', which

mixes the best elements of each.
http://en.wikipedia.org/wiki/Political_participationhttp://en.wikipedia.org/wiki/Gabriel_Almondhttp://en.wikipedia.org/wiki/Sidney_Verbahttp://en.wikipedia.org/wiki/Parochial_political_culturehttp://en.wikipedia.org/w/index.php?title=Subject_political_culture&action=edit&redlink=1http://en.wikipedia.org/w/index.php?title=Participant_political_culture&action=edit&redlink=1http://en.wikipedia.org/wiki/Civic_culturehttp://en.wikipedia.org/wiki/Civic_culturehttp://en.wikipedia.org/w/index.php?title=Participant_political_culture&action=edit&redlink=1http://en.wikipedia.org/w/index.php?title=Subject_political_culture&action=edit&redlink=1http://en.wikipedia.org/wiki/Parochial_political_culturehttp://en.wikipedia.org/wiki/Sidney_Verbahttp://en.wikipedia.org/wiki/Gabriel_Almondhttp://en.wikipedia.org/wiki/Political_participation


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Political culture is an important element of an overall environment in which the political

system function, develop and is influenced.

Political culture is how we think government should be carried out. It is different from

ideology because people can disagree on ideology, but still has a common political

culture.

Political culture shapes the political orientation, behaviour of people, and peoples

attitude.

It influences the political action, political process and political development.

Political culture is a product of several inter-related factors historical, geographical,

socio-economic.

For example an educated society is more conscious of its rights and has wider political

participation, better evaluation and criticism.

Indian political culture is often determined by its character of diversity in all respect of

life, different religion, caste, language, culture etc.

Caste and religion is an important part of politics in india and these factors to a great

extent shape the political culture of our country.

In India we see Dominance of traditional values like caste; religion etc leads to

politicisation and vote bank politics, Corruption, power politics, criminalization are other

features.

We also see growing awareness of people of their political rights, increasing role of civil

society in making government transparent and accountable.

It can be said that Indian political culture has been traditional in some, modern in some

and also a hotch potch of two.

Peoples attachment with bond s of casteism, communalism , parochialism, linguism, and

the like constitutes a clear case of traditionalism in the Indian political culture, while

movement for more and more educational and social reforms, for opportunities of

employment, and for democratization of the decision making process constitutes instances

of the modern political culture.

The new political culture in India:India perhaps the only nation that attained freedom after World War II and has not fallen a

prey so far to military rule or dictatorship. This is so because our founding fathers imbued


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with a spirit of liberal western traditions and incorporated the best of such traditions and

conventions in the constitution. The grant of universal suffrage to the millions of our

countrymen reflected the faith they had in the electors as well as the elected. Over the

years, except for aberrations here or there, Democratic India has stood the test of time.

Today ours is the largest functioning democracy in the world and people admire us as well

as our leaders for upholding the best traditions of this form of Government which is of the

people, for the people and by the people.

Democracy often described as rule of the mob or mobocracy, has brought in its wake

certain characteristics which are unbecoming of our rulers. Mobs are aroused over triffles

in the name of caste, community or religion and riots engineered in various parts of our

country.Caste and communal riots are black mark of our democracy. But somehow they

have given birth to new political culture in our country.

Demonstrations are organised, protests staged and riots engineered in the name of

language, caste or religion to build up vote banks for the interested political parties and

their leaders. Passions are set aflame over trivial matters and peace endangered frequently

in various parts of the country, solely to build up and consolidate these vote banks.

Another manifestation of new political culture in India is the interference in the affairs of

students, who are weaned away from studies and other constructive activities in the name

of electioneering. Students leaders are created and foisted on the innocent community by

politicians, who have an axe to grind in such elections .All that these leaders is to confront

the authorities over imaginary or real grievances and indulge in anti-social acts all in the

name of looking after the welfare of students.

Although we talk incessantly of women, children and the weaker sections of society ,in

reality the new political culture in India exploits these under-privileged sections the

most.Much is made of injustice heaped upon these sections. But all these happens when

elections are due. Once the elections are over, all the platitudes are forgotten and these

sections of society continue to toil and suffer as before.

But people have become wiser now.They have learnt that they cannot be fooled all the

time by the exponents of the new political culture in India.They have realised their

intrinsic worth and given a befitting reply to such opportunistic politicians time and

again.This shift in the perception of the masses certainly raises the hope that, out of the

ashes of the present political imbroglio, a new political culture will arise phoenix-like and

the country will be proud of its traditions and conventions.


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BUREAUCRACY AND DEMOCRACY:

Bureaucracy and democracy are often considered antithetical properties of political

systems. There is a large scholarly and popular literature arguing that bureaucracies are

major problems limiting the capacity of democratic political systems to effectivelyrespond to their citizens. In this panel we will be pursuing the contrary argument that the

public bureaucracy may be becoming the locus for democratic responsiveness in many

political systems.

The importance for bureaucracy for democracy in contemporary political systems arises in

part from the weaknesses of more conventional institutions of democracy. For example,

participation in elections has been falling rapidly in most democratic systems, and

membership in political parties in also declining. Parliaments have for some time been

argued to be losing power to the executive, and within the executive the collegiality of

cabinet i

philosophical constitutional framework of govt

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