Wikimedia Jawaharlal Nehru signing the Indian constitution in 1950.

India's Democratic Constitution

INDIA joined the liberal forces of the world on January 26, 1950, as a sovereign democratic republic. Under her new constitution, enacted two months earlier, not only does she owe no allegiance to any ruling house, but she has wiped away that miscellaneous collection of ruling princes, chieftains, estate-holders and whatnots that disfigured her till 1947. Had she become a federation under the Government of India Act of 1935, there would have been 568 units in the area now in the Indian Union, 559 of them under princes and princelings. Today there are only 16 units of the federation and not one of them is under the rule of a hereditary prince. Though a republic, India has been welcomed as a member of the British Commonwealth of Nations, and the British Parliament has passed an act allowing her nationals full rights of British citizenship in Great Britain. She is a sovereign state espousing international causes in her own right and fighting battles for humanity and peace after her own fashion.

India is not only a republic but a democratic republic. All her adult citizens possess the vote, she has outlawed inequality of sexes, her constitution recognizes no class barriers, her polity guarantees freedom of opinion, assembly and association. A rational distribution of national income is an avowed object of her endeavor. Her railways, telephones, telegraphs and broadcasting services have been nationalized. During the last three years she has, over a large area, made the tillers of the soil proprietors of the land they cultivate. If she is going slowly in the nationalization of her means of production just now, that is because she does not believe in biting off more than she can chew.

Though a republic under a President, her form of government is parliamentary. Her President, governors and Rajapramukhs will be constitutional heads rather than effective chiefs of the state, and her governments will depend upon parliamentary majorities in the lower houses, under the leadership of her prime minister in the Union and of the chief ministers in the states. The constitution toys with the idea of making the executive strong by investing the constitutional heads of governments in the Union as well as the states with some independent powers. It is likely, however, that, as in republican France, the President and governors will seek safety in ignoring such provisions. India has clothed the virtual dictatorship of the Cabinet usual in parliamentary governments in legal form by allowing the Indian Cabinet, when the legislature is not in session, to legislate and to permit spending of money not otherwise authorized by law. Her federal Parliament consists of two chambers, a House of the People and a Council of States. The large membership of the House of the People -- 500 members -- will make it possible for national constituencies to be much smaller than they are today.

The Union is a federation, with political power divided between the Union and the states. The federal government is a successor-state to a unitary government, and the constitution declares that residuary governmental power -- administrative, legislative and financial -- vests in the Union. The recent lessons of federalism in the United States, Canada, Australia and Switzerland have been freely drawn upon in order to enable the Union Government to discharge, from the very beginning, functions which in all these states are still a matter of implied construction, voluntary concession, or the result of the momentary pressure of events. Thus planning, social insurance, labor welfare, implementation of treaty obligations are all matters of federal concern, either solely or concurrently with the states. As in Canada, the head of the federal government appoints the heads of the local governments.

The cumbersome American method of creating a double set of courts throughout the country has been avoided by making the organization and composition of the High Courts in the states a federal responsibility and allowing the President to appoint the judges. Difficulties experienced by Canada and the United States in undertaking government projects intended to serve more than one province or state have been avoided by allowing two, or more than two, states to request Parliament to legislate for them. Almost all the methods of financial subvention to the local units used in Canada or the United States have been bodily incorporated in the constitution. Where uniformity of taxation has been proved essential in national interest the Union levies local taxes but allows the local governments to collect them. In certain other cases, e.g. taxes on income, the tax is levied and collected by the Union but the proceeds shared.

The states have been endowed with uniform functions and equal authority. Though large fields of action are reserved for the federal government, the states are vital instruments of national policy. Public order, administration of justice, local self-government, education, medical relief both preventive and curative, agriculture, forests, fisheries, industry, trade and commerce within the state, roads and waterways not of national magnitude, and relief of the disabled and unemployable are all the concern of the states. Social insurance, labor welfare and trade-unions problems are on the specific list of matters subject to the authority of both Union and the states.

The retention of the provisions of the much-maligned section 93 of the Government of India Act of 1935 is held by some to be a dangerous encroachment on the authority of the states, and defended by others as necessary in view of the unpleasant experience with certain states in recent years. These provisions enable the federal government to administer a state if it is satisfied that the administration cannot be carried on normally. It is unlikely, however, that this provision will ever be used, except in what was until recently princely India.

Besides the states forming the federation, the Union governs 12 "territories" as "centrally administered areas." They cover among them a considerable part of the total area of the Union and are inhabited by a numerous population. Many of these are odd corners thrown up by the process of integration of the states and some of them may ultimately be merged in neighboring states. These territories may be governed by Chief Commissioners or Lieutenant Governors, may have local legislatures of their own, or may aspire further to possess a council of ministers. The presence of these centrally administered territories adds immensely to the tasks of the Government of the Union.

An attempt has been made to check the process of development of a double set of officials, federal and local. The Government of the Union may vest the government of a state or its officials with power to exercise federal functions as its agent, and to make such work attractive will pay the state for it.

The republic will have in the Supreme Court its highest appellate tribunal and will no longer depend upon the Privy Council in London to perform that function. The Supreme Court will also serve as the guardian of the constitution, interpreting it and enforcing its provisions. It will enjoy the right to grant special appeal in all types of cases. Every state will have a High Court or make use of one situated in another state. The jurisdiction of the High Court has been enlarged so as to bring revenue cases under its purview. The independence of the judiciary has been secured by bringing the lower courts entirely under the control of the High Court, the judges of which are appointed by the Government of the Union. It is likely that the present practice of drawing upon the judges of the High Court to fill the position of Chief Justice or associate judge in another High Court will continue.

The introduction of a "spoils system" in the new republic has been rendered impossible by entrusting the work of recruitment, promotion and demotion of public servants to Public Services Commissions. The retention of an Indian Administrative Service and of an Indian Police Service will further safeguard the citizens against the intrusion of bossism in state government. The secretariat and the chief administrative officer in the Union as well as the states will probably continue to be filled by these officers. It would be difficult for the governments of the states to get rid of them easily for "political" reasons. As a natural corollary, members of the public services have been denied active participation in politics.

Certain provisions of the constitution can be amended by the Government of the Union, including provision for the creation of new administrative units carved out of the "centrally administered areas." The provisions regarding the organization of the governments of the states, their relations with the Government of the Union and division of function between the two can be amended only by a two-thirds majority in both houses of Parliament followed by the approval of the amendment by the legislatures of a majority of the units. Other provisions can be amended by Parliament by a two-thirds majority.

Provision is made in the constitution for carrying on crisis government during emergencies caused by a threat of an invasion, an internal disturbance or by financial breakdown. The President, presumably representing the federal government, has been clothed with power to carry on crisis government for two months subject to extension by the vote of the legislature. Emergency legislation will remain valid for six months -- and in certain cases for a year -- after the emergency has been proclaimed to be at an end.

Under this constitution India is slated to become the most populous democracy in the world. The organization and structure of her government, and the guarantee of fundamental rights to her citizens, are intended to safeguard individual freedom. And the constitution defines the objectives of the state policy in such a manner as to make it possible for citizens of India ultimately to enjoy social security and freedom from want as well.

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