Lesson 1 of 62 | 1. Indian Polity, Constitution, and Governance
Constitutional Vision: Preamble, Key Features, and Basic Structure
The Constitution of India came into force on 26 January 1950. It is the supreme law: Article 13 says that a law which takes away or abridges a Fundamental Right is void to the extent of that conflict, and Article 245 makes Parliament's and the states' law-making power subject to the Constitution. A statute, a government order, and even a constitutional amendment have to be read against that text.
What the Preamble does
The Preamble states the source of authority and the aims of the Constitution. It says that the people of India, through the Constituent Assembly, adopt, enact and give to themselves this Constitution. It then resolves to constitute India into a sovereign, socialist, secular, democratic republic and to secure to all its citizens justice, liberty, equality and fraternity.
Those words are not decorative, and they are not themselves a catalogue of enforceable rights.
In In re Berubari Union (1960) the Supreme Court held that the Preamble is not a part of the Constitution and cannot be used as a source of substantive power. It can show the general purposes of the founders. In Kesavananda Bharati (1973) the Court overruled that view on this point and held that the Preamble is a part of the Constitution. It can be used to interpret ambiguous provisions. It still does not, by itself, create a Fundamental Right. A lawyer cannot file a writ only because a state policy is said to offend "fraternity" or "socialist" as those words appear in the Preamble. The right, if any, has to be located in a specific article.
The words socialist, secular and integrity were not in the original Preamble. They were inserted by the 42nd Amendment in 1976. Secularism and democracy have since been treated as parts of the basic structure, so their presence in the Preamble is evidence of the Constitution's identity. It is not the only evidence. Secularism is also built into Articles 14, 15, 25 to 28 and 44.
Read the aims in the order the Preamble writes them. Justice is social, economic and political. Liberty is of thought, expression, belief, faith and worship. Equality is of status and of opportunity. Fraternity assures the dignity of the individual and the unity and integrity of the nation. Social and economic justice is the bridge to the Directive Principles in Part IV. Liberty and equality of status are the bridge to the Fundamental Rights in Part III. The Constitution holds both. It does not choose one and discard the other.
The features that follow from the text
India is a sovereign state. No external authority can dictate its Constitution. Membership of the Commonwealth does not qualify that sovereignty.
It is a republic. The head of state is an elected President under Articles 54 and 55, not a hereditary monarch.
It is a democracy in two senses. The Preamble says the people are the source of authority. The operative text creates universal adult suffrage (Article 326), a directly elected Lok Sabha, and governments that hold office while they command the confidence of that House.
Government is parliamentary. Article 74 requires a Council of Ministers headed by the Prime Minister to aid and advise the President. Article 75(3) makes that Council collectively responsible to the House of the People. The President is the formal head. The ministry that has the confidence of the Lok Sabha is the real executive. This is the opposite of a presidential system, in which the executive is elected separately and does not fall when it loses a vote in the legislature.
The distribution of powers is federal. Article 245 and the Seventh Schedule divide legislative subjects into the Union List, the State List and the Concurrent List. There is a Supreme Court to decide disputes between the Union and the states (Article 131). At the same time the Union has powers that a classic federation does not give the centre: Parliament may legislate on a State subject during an emergency (Article 250), or when the Rajya Sabha resolves that it is necessary in the national interest (Article 249), and the Governor of a state is appointed by the President (Article 155). The usual description is a federation with a strong Union, not a unitary state and not a compact of sovereign states.
There is a single citizenship. A person is a citizen of India under Part II. There is no separate citizenship of a state. Domicile in a state can matter for education or employment, but it is not a second citizenship.
The judiciary is separate from the executive and can review legislation. Article 50, a Directive Principle, calls for that separation. Articles 32 and 226 give the courts writ jurisdiction. Article 13 is the hook for reviewing ordinary laws against Fundamental Rights. The power to review constitutional amendments was not written as a single clause. The Court developed it in the cases below.
Article 368 and the basic structure
Article 368 prescribes how most of the Constitution is amended. A bill for that purpose must be passed by each House separately, by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting. Some changes also need ratification by the legislatures of not less than one-half of the states. Those are the changes that affect the federal arrangement: the election of the President, the extent of the executive and legislative power of the Union and the states, the Union judiciary, the High Courts, the distribution of legislative powers, and the representation of states in Parliament, together with Article 368 itself. A joint sitting cannot be used to pass an amendment bill.
Not every constitutional change uses Article 368. A few provisions can be changed by an ordinary law of Parliament, such as the creation of a new state under Article 3 or the formation of new All-India Services under Article 312. Those laws are not amendments under Article 368, and they do not need the special majority.
The fight over Article 368 was about Fundamental Rights. In Shankari Prasad (1951) and Sajjan Singh (1965) the Court held that Parliament could amend Fundamental Rights, because a constitutional amendment made under Article 368 was not "law" under Article 13. In Golaknath (1967) a majority held the opposite: Fundamental Rights were beyond amendment. The 24th Amendment then amended Article 13 and Article 368 to say expressly that an amendment under Article 368 is not "law" within Article 13, and that Parliament may amend any provision of the Constitution.
Kesavananda Bharati (1973) upheld the 24th Amendment and overruled Golaknath on the narrow point that Fundamental Rights can be amended. It held, at the same time, that the amending power cannot be used to destroy the basic structure, or the identity, of the Constitution. Parliament may renovate. It may not abrogate the Constitution and replace it with another.
The judgment did not publish a closed list. Later benches have treated these as parts of that identity: supremacy of the Constitution, the republican and democratic form of government, secularism, the separation of powers, the federal character, judicial review, and the balance between Fundamental Rights and Directive Principles. In the Indira Nehru Gandhi election case (1975) the Court used the doctrine to strike down a clause that tried to put the Prime Minister's election beyond judicial scrutiny. In Minerva Mills (1980) the Court held that a limited amending power is itself part of the basic structure, and that Parliament cannot use Article 368 to give itself an unlimited power. Waman Rao (1981) applied the doctrine to amendments made after 24 April 1973, the date of Kesavananda.
Two limits of the doctrine matter. First, it controls constitutional amendments, not ordinary statutes. An ordinary law is tested against the particular article it is said to violate. Second, the Court has not treated every important provision as basic structure. A change to a single article can be valid even if it is politically controversial, unless it damages the identity of the Constitution.
How the three sources stay distinct
The constitutional text is what Articles 1 to 395 and the Schedules say, as amended. A convention is a practice that political actors treat as binding even though no article writes it down, such as the President appointing as Prime Minister the person who is likely to command the confidence of the Lok Sabha. A judicial doctrine is a rule built by decisions, such as the basic structure. The basic structure is not a hidden article. It is the Court's reading of what Article 368 cannot do. An answer that calls a convention a Fundamental Right, or that treats a Preamble phrase as a writ, has mixed these three up.
Analogy
The Constitution is like the rulebook of a large housing society that also elects its managers. The Preamble is the founding promise on the gate: justice, liberty, equality and fraternity. Residents may vote to repaint the corridors or change the parking rules. They cannot vote away the promise that every resident has a vote and a fair hearing. That limit is the basic-structure idea. Article 368 lets Parliament renovate the building. It does not let a temporary majority demolish the foundation.
Quick reference
Preamble
Justice, liberty, equality and fraternity. India is a sovereign, socialist, secular, democratic republic.
Article 368
Parliament may amend the Constitution. Some changes need a special majority. Changes to the federal scheme also need ratification by at least half the states.
Basic structure
Kesavananda Bharati (1973): the amending power cannot destroy the Constitution's identity. Judicial review, democracy, secularism and federalism are commonly cited parts of that identity.
Constitutionalism
Public power needs legal authority, fair procedure, and a court that can review it.
Prelims trap
A phrase in the Preamble is not automatically an enforceable fundamental right. Keep the constitutional text, a convention, and a judicial doctrine separate.