17. Polity Notes 04

Elaborate Notes

Criticism of the Indian Constitution

The Constitution of India, a foundational document for the world’s largest democracy, has been lauded for its vision and resilience. However, since its inception, it has also been a subject of intense academic and political criticism.

• Lengthiest Written Constitution:

  • The Indian Constitution is distinguished by its sheer volume. At its commencement in 1950, it contained 395 Articles and 8 Schedules. This size is often contrasted with the concise constitutions of other nations, such as the US Constitution, which has only 7 articles.
  • Historical Context: The framers, having witnessed the complexities of governing a vast and diverse subcontinent under the Government of India Act, 1935, chose to be exhaustive. The trauma of Partition and the need to accommodate myriad linguistic, religious, and cultural groups necessitated detailed provisions to prevent future ambiguity and conflict.
  • Scholarly Viewpoint: Sir Ivor Jennings, a British constitutional expert, famously called it a “lawyer’s paradise” due to its complexity and bulk. He argued that the framers included administrative details that are typically found in ordinary legislation, not in a constitution.
  • Counter-Argument: Granville Austin, in his seminal work The Indian Constitution: Cornerstone of a Nation (1966), argued that the length and detail were a deliberate choice to usher in a social revolution and build a new society. The framers, particularly Dr. B.R. Ambedkar, believed that leaving crucial matters to ordinary legislation might allow transient parliamentary majorities to undermine the constitution’s core principles. For instance, detailed provisions on services and judiciary were included to ensure their independence.

• A ‘Bag of Borrowed Materials’:

  • Critics often describe the Constitution as a “patchwork” or a “bag of borrowings,” suggesting a lack of originality. It is a fact that its framers drew inspiration from various global constitutions.
  • Examples of Borrowings:
    • United Kingdom: Parliamentary government, Rule of Law, legislative procedure, single citizenship, cabinet system.
    • United States: Fundamental Rights, judicial review, independence of judiciary, impeachment of the President, Preamble.
    • Ireland: Directive Principles of State Policy (DPSP), method of election of the President.
    • Canada: Federation with a strong Centre, vesting of residuary powers in the Centre.
    • Germany (Weimar Republic): Suspension of Fundamental Rights during Emergency.
  • Constituent Assembly Debates (CAD): Responding to this criticism in the Constituent Assembly, Dr. B.R. Ambedkar stated, “…one likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. … The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.” He argued that the objective was to select the best provisions and adapt them to India’s unique socio-political conditions.

• An Extension of the Government of India Act, 1935:

  • A significant portion of the constitutional framework, particularly its administrative and structural aspects, is derived from the Government of India Act, 1935. Features like the federal scheme, office of the governor, judiciary, and public service commissions were adopted from the 1935 Act.
  • Scholarly Viewpoint: Critics like N. Srinivasan argued that the Indian Constitution is “both in language and substance a close copy of the Act of 1935.”
  • Fundamental Difference: This criticism overlooks a crucial distinction. The 1935 Act was an instrument of colonial rule, deriving its authority from the British Parliament. In stark contrast, the Indian Constitution derives its authority from the people of India, as proclaimed in its Preamble (“We, THE PEOPLE OF INDIA… give to ourselves this Constitution”). Furthermore, the Constitution introduced radical changes like Universal Adult Franchise (Article 326) and justiciable Fundamental Rights, which were absent in the 1935 Act, thereby transforming the relationship between the state and the citizen from one of subjecthood to one of citizenship.

• Complete Exclusion of Gandhian Values:

  • Some members of the Constituent Assembly and later critics lamented the Constitution’s perceived departure from the Gandhian vision for India.
  • Gandhian Vision: Mahatma Gandhi advocated for a decentralized polity based on ‘Gram Swaraj’ (village self-rule), where power would flow from the bottom up. He envisioned a minimal state with a focus on cottage industries and community life.
  • Constitutional Framework: The Constitution, however, established a highly centralized parliamentary system with a strong union government. The framers, influenced by the recent partition and communal violence, prioritized national unity and security over radical decentralization.
  • Constituent Assembly Debates (CAD): K. Hanumanthaiya, a member from Mysore, expressed his disappointment, stating, “We wanted the music of Veena or Sitar, but here we have the music of an English band.”
  • Reconciliation: As a compromise and a tribute to Gandhian ideals, the promotion of village panchayats was included as a Directive Principle in Article 40. This was later given constitutional status and a more robust framework through the 73rd Amendment Act, 1992.

• A ‘Lawyer’s Paradise and a Common Man’s Nightmare’:

  • This criticism points to the legalistic language and complex phraseology of the Constitution, making it inaccessible to the common citizen.
  • Dominance of Lawyers: The Constituent Assembly, especially the Drafting Committee, was dominated by legal luminaries such as Dr. B.R. Ambedkar, Alladi Krishnaswami Ayyar, K.M. Munshi, and N. Gopalaswami Ayyangar. Their legal background is reflected in the document’s precision, but also in its complexity.
  • Consequences: This complexity has led to extensive litigation, with the judiciary often being called upon to interpret its intricate provisions. For an ordinary citizen, understanding and asserting their constitutional rights can be a daunting task without legal assistance, reinforcing the “nightmare” aspect of the criticism. The emphasis on “procedure established by law” (Article 21) instead of the more flexible “due process of law” (as in the US) is an example of this legalistic precision.

Schedules of the Indian Constitution

The Schedules are tables which categorise and tabulate bureaucratic activity and government policy. They were designed to streamline the Constitution and keep its main body uncluttered. Originally 8, they are now 12 in number.

• First Schedule (Articles 1 and 4):

  • Content: Lists the States and Union Territories of India and details their territorial jurisdiction.
  • Significance: Any change in the territory of a state or UT, such as the creation of Telangana in 2014 or the reorganisation of Jammu & Kashmir in 2019, requires an amendment to this schedule.

• Second Schedule:

  • Content: Specifies the emoluments, allowances, and privileges for the holders of constitutional offices, including the President, Governors, Speakers, Judges of the Supreme Court and High Courts, and the Comptroller and Auditor General of India (CAG).
  • Significance: These provisions are intended to ensure the independence and impartiality of these high offices by making their salaries and allowances non-votable by the Parliament (charged upon the Consolidated Fund of India).

• Third Schedule:

  • Content: Contains the forms of Oaths or Affirmations for various constitutional functionaries, including Union Ministers, Members of Parliament, Supreme Court Judges, and state legislators.
  • Significance: It binds the office-holders to their constitutional duties, including upholding the sovereignty and integrity of India.

• Fourth Schedule (Articles 4 and 80):

  • Content: Allocates seats in the Rajya Sabha (Council of States) to the various States and Union Territories.
  • Significance: The allocation is made on the basis of population, reflecting the principle of asymmetric federalism, where states are not represented equally, unlike the US Senate.

• Fifth Schedule (Article 244(1)):

  • Content: Contains provisions for the administration and control of Scheduled Areas and Scheduled Tribes in any state except Assam, Meghalaya, Tripura, and Mizoram.
  • Significance: It provides for the establishment of a Tribes Advisory Council and grants special powers to the Governor to adapt laws to protect the interests and cultural autonomy of the tribal population.

• Sixth Schedule (Article 244(2)):

  • Content: Deals with the administration of tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram.
  • Significance: It provides for a higher degree of autonomy through the creation of Autonomous District Councils (ADCs) and Regional Councils, which have powers to make laws on specific subjects like land, forests, and social customs.

• Seventh Schedule (Article 246):

  • Content: Delineates the division of legislative powers between the Union and the States through three lists:
    1. List-I (Union List): Subjects of national importance where only Parliament can make laws (e.g., Defence, Foreign Affairs, Currency). Currently has 100 subjects.
    2. List-II (State List): Subjects of local importance where state legislatures can make laws (e.g., Public Order, Police, Public Health). Currently has 61 subjects.
    3. List-III (Concurrent List): Subjects where both Parliament and state legislatures can make laws (e.g., Education, Forests, Marriage). In case of conflict, the Union law prevails. Currently has 52 subjects.
  • Significance: This schedule is the bedrock of Indian federalism, though it has a strong centralizing bias as residuary powers vest with the Centre (Article 248).

• Eighth Schedule (Articles 344 and 351):

  • Content: Lists the officially recognized languages of the Republic of India.
  • Historical Context: Originally, it had 14 languages. Through subsequent amendments, 8 more languages were added.
    • 21st Amendment Act, 1967: Added Sindhi.
    • 71st Amendment Act, 1992: Added Konkani, Manipuri (Meitei), and Nepali.
    • 92nd Amendment Act, 2003: Added Bodo, Dogri, Maithili, and Santhali.
    • 96th Amendment Act, 2011: Substituted “Oriya” with “Odia”.
  • Current Status: The schedule currently contains 22 languages.

• Ninth Schedule:

  • Content: Contains a list of central and state laws that are shielded from judicial review.
  • Historical Context: It was added by the First Constitutional Amendment Act, 1951, to protect agrarian reform and land acquisition laws from being challenged in court for violating Fundamental Rights (particularly the Right to Property, then a fundamental right).
  • Judicial Scrutiny: The Supreme Court’s verdict in I.R. Coelho v. State of Tamil Nadu (2007) was a landmark judgment. The Court ruled that any law placed in the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment) would be open to judicial review if it violates the “basic structure” of the Constitution.

• Tenth Schedule:

  • Content: Contains provisions relating to the disqualification of members of Parliament and State Legislatures on the ground of defection.
  • Historical Context: Popularly known as the “Anti-Defection Law,” it was added by the 52nd Constitutional Amendment Act, 1985, to curb political defections motivated by personal gain or political instability. The decision of the Presiding Officer (Speaker/Chairman) was initially final but was made subject to judicial review by the Supreme Court in the Kihoto Hollohan case (1992).

• Eleventh Schedule:

  • Content: Specifies the powers, authority, and responsibilities of Panchayats. It contains 29 functional items.
  • Historical Context: Added by the 73rd Constitutional Amendment Act, 1992, this schedule gave constitutional sanction to Panchayati Raj Institutions (PRIs) as institutions of local self-government.

• Twelfth Schedule:

  • Content: Specifies the powers, authority, and responsibilities of Municipalities. It contains 18 functional items.
  • Historical Context: Added by the 74th Constitutional Amendment Act, 1992, this schedule provides a framework for the functioning of urban local bodies.

Prelims Pointers

• The original Constitution had 395 Articles and 8 Schedules.
• Sir Ivor Jennings termed the Indian Constitution a “lawyer’s paradise”.
• Granville Austin described the Constitution as a tool for “social revolution”.
• The concept of Directive Principles of State Policy (DPSP) was borrowed from the Irish Constitution.
• The concept of Federation with a strong Centre was borrowed from the Canadian Constitution.
• The Government of India Act, 1935 is the primary source for the administrative structure of the Indian Constitution.
• Universal Adult Franchise is enshrined in Article 326.
• Article 40 of the Constitution (DPSP) deals with the organisation of village panchayats.
• The First Schedule deals with the names of States and Union Territories.
• The Fourth Schedule deals with the allocation of seats in the Rajya Sabha.
• The Fifth Schedule applies to Scheduled Areas and Scheduled Tribes in all states except Assam, Meghalaya, Tripura, and Mizoram.
• The Sixth Schedule provides for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram through Autonomous District Councils (ADCs).
• The Seventh Schedule contains three lists: Union List (100 subjects), State List (61 subjects), and Concurrent List (52 subjects).
• The Eighth Schedule currently recognizes 22 languages.
• Languages added by amendments:
  1. Sindhi: 21st Amendment, 1967.
  2. Konkani, Manipuri, Nepali: 71st Amendment, 1992.
  3. Bodo, Dogri, Maithili, Santhali: 92nd Amendment, 2003.
• The Ninth Schedule was added by the 1st Amendment Act, 1951.
• In the I.R. Coelho case (2007), the Supreme Court held that laws in the 9th Schedule are subject to judicial review if they violate the basic structure and were added after April 24, 1973.
• The Tenth Schedule (Anti-Defection Law) was added by the 52nd Amendment Act, 1985.
• The Eleventh Schedule (Panchayats) was added by the 73rd Amendment Act, 1992, and contains 29 subjects.
• The Twelfth Schedule (Municipalities) was added by the 74th Amendment Act, 1992, and contains 18 subjects.

Mains Insights

• Criticism of the Constitution: A Matter of Perspective

  • Cause-Effect: The framers’ experiences with the Partition, India’s immense diversity, and socio-economic backwardness directly caused them to draft a detailed and centralized constitution. The criticism of it being “lengthy” or a “lawyer’s paradise” must be viewed in this context. The goal was pre-emptive problem-solving, not theoretical elegance.
  • Debate: The debate on whether the Constitution is a “bag of borrowings” is a classic one. The counter-viewpoint is that it represents ‘constitutional syncretism’—the intelligent adaptation of global best practices to local needs. The framers did not blindly copy; they modified provisions to suit the Indian milieu. For example, while adopting the parliamentary system, they opted for an elected President (Republic) unlike the British hereditary monarch.

• Schedules as Dynamic Instruments of Governance

  • Federalism (7th Schedule): The 7th Schedule is the lynchpin of Indian federalism. However, its pro-Centre bias (more subjects in Union List, overriding power in Concurrent List, residuary powers with Centre) is a constant source of Union-State friction. This design reflects the Constituent Assembly’s concern for national unity.
  • Protecting the Vulnerable (5th & 6th Schedules): These schedules represent a unique constitutional mechanism for asymmetric federalism and affirmative action. They acknowledge that a ‘one-size-fits-all’ approach is unsuitable for tribal administration. The debate today revolves around their effective implementation and demands for inclusion of new regions (like Ladakh) under the 6th Schedule.
  • Judicial Review vs. Parliamentary Supremacy (9th Schedule): The 9th Schedule embodies the historical tension between the legislature’s intent to bring about socio-economic reforms (like land distribution) and the judiciary’s role as the protector of fundamental rights. The I.R. Coelho judgment represents a powerful assertion by the judiciary, establishing that no part of the Constitution is beyond the reach of the ‘basic structure’ doctrine.

• Strengthening Democracy (10th, 11th, & 12th Schedules)

  • Anti-Defection Law (10th Schedule): While intended to ensure stability, the 10th Schedule is criticized for stifling dissent within parties and giving the party leadership absolute power over legislators, potentially undermining representative democracy. The role of the Speaker is also often seen as politically partisan.
  • Decentralization (11th & 12th Schedules): These schedules represent a constitutional commitment to grassroots democracy. However, their success is hampered by the “3 Fs” problem: lack of effective devolution of Functions, Funds, and Functionaries from the state governments to local bodies. This makes a case for genuine fiscal and administrative decentralization to realize the Gandhian ideal of Gram Swaraj.

Previous Year Questions

Prelims

1. Under which Schedule of the Constitution of India can the transfer of tribal land to private parties for mining be declared null and void? (UPSC CSE 2019) (a) Third Schedule (b) Fifth Schedule (c) Ninth Schedule (d) Twelfth Schedule

   Answer: (b) Fifth Schedule. The Fifth Schedule gives the Governor of a state with Scheduled Areas the power to make regulations to prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area.

2. The Ninth Schedule was introduced in the Constitution of India during the prime ministership of: (UPSC CSE 2019) (a) Jawaharlal Nehru (b) Lal Bahadur Shastri (c) Indira Gandhi (d) Morarji Desai

   Answer: (a) Jawaharlal Nehru. The Ninth Schedule was added via the First Constitutional Amendment Act in 1951, when Jawaharlal Nehru was the Prime Minister.

3. Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (UPSC CSE 2014 - Re-asked in similar formats) (a) Second Schedule (b) Fifth Schedule (c) Eighth Schedule (d) Tenth Schedule

   Answer: (d) Tenth Schedule.

4. If a particular area is brought under the Fifth Schedule of the Constitution of India, which one of the following statements best reflects the consequence of it? (UPSC CSE 2022) (a) This would prevent the transfer of land of tribal people to non-tribal people. (b) This would create a local self-governing body in that area. (c) This would convert that area into a Union Territory. (d) The State having such areas would be declared a Special Category State.

   Answer: (a) This would prevent the transfer of land of tribal people to non-tribal people. This is one of the primary objectives and powers provided to the Governor under the Fifth Schedule to protect tribal interests.

5. With reference to the Constitution of India, consider the following statements: (UPSC CSE 2023)

   1. The Constitution of India is the lengthiest written constitution in the world.
   2. The Constitution of India was originally written in both Hindi and English.
   3. The Constitution of India provides for a single citizenship for the entire country. Which of the statements given above are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3

   Answer: (c) 1 and 3 only. Statement 2 is incorrect. The original Constitution was handwritten in English. A Hindi translation was also prepared, but the authoritative text was in English.

Mains

1. To what extent is the Central Government responsible for the violence in Manipur? Is the Sixth Schedule the solution for the problems of Manipur? (UPSC GS Paper-II 2023, modified) (Insight: This question links a current event to a constitutional provision (Sixth Schedule), requiring an analysis of the schedule’s purpose, its applicability to the complex ethnic issues in Manipur, and the role of the central government in maintaining peace.)

2. “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society.” Illustrate with special reference to the expanding horizons of the right to life and personal liberty. (UPSC GS Paper-II 2023) (Insight: This question explores the dynamic nature of the Constitution, moving beyond its static text. While not directly about criticism, it addresses the counter-argument that the Constitution is not a rigid document but one that evolves, especially through judicial interpretation like in Article 21.)

3. Discuss the role of the Vice-President of India as the Chairman of the Rajya Sabha. (UPSC GS Paper-II 2022) (Insight: This question relates indirectly to the constitutional design and allocation of roles. The Vice-President’s role is defined within the constitutional structure, which critics argued was borrowed and detailed. Answering requires understanding the provisions related to constitutional offices, some of which are detailed in the Schedules.)

4. Do you think that the Constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. (UPSC GS Paper-II 2019) (Insight: This question delves into the fundamental philosophy of the Constitution’s structure. The answer would involve analyzing the relationships between the legislature, executive, and judiciary, a structure heavily influenced by the British parliamentary system (a ‘borrowed’ feature) but modified with an independent judiciary capable of judicial review (an ‘American’ feature), thus creating a unique system of checks and balances.)

5. The judicial systems in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (UPSC GS Paper-II 2020) (Insight: This requires a comparative analysis of constitutional systems, implicitly touching upon the “borrowed” nature of India’s legal and parliamentary framework from the UK. The answer would highlight how India adopted the common law system but diverged significantly by adopting a written constitution, fundamental rights, and the power of judicial review, which is much more limited in the UK due to the principle of parliamentary sovereignty.)